BY Willem le Roux , Pieter Colyn AND Tyla Foster
South Africa: is there an obligation on employers to report and investigate incidents of occupational-acquired COVID-19 in the mining industry?
Is the employer obligated to notify the Principal Inspector of Mines of known cases of COVID-19 in the workforce?
In terms of section 11(5B) of the Mine Health and Safety Act, 1996 (the "MHSA"), the employer is required to notify the Principal Inspector of Mines of any occurrence at the mine that results in the illness of any person. Due to the generality of this provision, all illnesses caused by occurrences become reportable and would even include known cases of COVID-19 amongst the workforce, including those that are not occupationally-related. This obligation is extremely cumbersome and it is for this reason that this provision should be amended to bring it in line with the obligations imposed by section 11(5) of the MHSA, which refer to "serious illness" as opposed to an "illness".
When does the obligation to conduct an investigation arise?
In terms of the MHSA and the regulations binding thereunder, the employer (being the holder of the exploration or mining right or permit) has several duties and obligations regarding operations at its mine(s). In particular, the employer is required to implement reasonably practicable measures, aimed at the prevention of accidents, serious illnesses and health-threatening occurrences and to further improve health and safety at its mine(s). Upon the occurrence of a reportable accident, serious illness or health-threatening occurrence, the employer is obligated to conduct an investigation in terms of section 11(5) of the MHSA.
The investigation is required to commence within 10 days from the date of such accident, serious illness or health-threatening occurrence. Upon completion of the investigation, a written report is required to be compiled and delivered to the responsible Principal Inspector of Mines. The report is required to be completed within 30 days from the date of the accident, serious illness or health-threatening occurrence, or such longer period as the Principal Inspector of Mines may permit.
The investigation report is required to:
- identify the causes and underlying causes of the accident, serious illness or health-threatening occurrence;
- identify any unsafe conditions, acts, or procedures that contribute in any manner to the accident, serious illness or health-threatening occurrence; and
- make recommendations to prevent a similar accident, serious illness or health-threatening occurrence.
Does "occupationally acquired COVID-19" fall within the definition of "serious illness" in terms of the MHSA?
On 23 March 2020, a notice was published by the Compensation Commissioner, stipulating that, effective from the date of publication, employees who have "occupationally acquired" COVID-19 may be compensated in terms of the Compensation for Occupational Injuries and Diseases Act, 1993.
- Occupationally acquired COVID-19 is described in the Notice as a disease contracted by an employee, arising out of, and in the course of his or her employment. For further information, please see our previous ENSight.
In terms of section 102 of the MHSA, the term "serious illness" is defined as meaning: "any illness resulting from occupational exposure that affects the health of a person to the extent that it incapacitates the affected person from resuming that person's normal or similar occupation for four days or more".
In order to determine, whether or not the exposure of an employee to COVID-19 was occupationally-related for the purposes of the definition of "serious illness", a question arises as to:
- whether or not the mere exposure to COVID-19 at the workplace (through the interaction with person(s) who have contracted COVID-19 or otherwise) is sufficient to satisfy the requirement of "occupational exposure", or
- must the exposure to COVID-19 be associated with, or be incidental to, a particular type of work.
The words "occupational exposure", as contained within the definition of serious illness, are not further defined in the MHSA. In order to determine whether or not the legislature intended to include the potential source of exposure (that is the workplace) into the definition of "serious illness", the principles pertaining to the interpretation of statutes must be considered.
The law regulating the interpretation of statutes provides that words must be interpreted in the context in which it is used, and in its popular sense. In the event that the word has acquired a meaning in a technical sense, then that meaning must be adopted unless the context dictates otherwise:
- The word "occupational" is defined in the Oxford Advanced Learner's Dictionary (5th Edition) as "… caused by or connected with a person's job…" (our emphasis added) and "occupational hazard" as a "risk or danger connected with a particular job". The Concise Oxford Dictionary (1st Edition) defines the word "occupational" as meaning "… of or in the nature of an occupation or occupations" and "… (of a disease, hazard, etc.) rendered more likely by one's occupation".
- The word "exposure" is defined in the Concise Oxford Dictionary (1st Edition) as meaning, amongst others, "… the act or condition of exposing or being exposed (to air, cold, danger, etc.)…".
It is clear that when considering the words "occupational" and "exposure", used in its popular sense, the exposure to a risk or danger must be associated with, or be incidental to a particular type of work. This will, however, be determined on a case-by-case basis and depend on the determination of various factors. The exposure of an individual to a risk or danger at a workplace is not in itself sufficient for such exposure to be regarded as occupationally-related. For example, a rock drill operator, who is exposed to COVID-19 through the interaction with a fellow employee while underground at work, does not render such exposure as occupationally related, as risk of exposure is not associated with, or incidental to, the job of a rock drill operator. If an occupational medical practitioner during a medical surveillance examination of an employee is exposed to COVID-19 and subsequently contracts the disease, it will be a "serious illness".
If the employer, however, has reason to believe that the exposure of an employee to COVID-19 is associated with, or incidental to the employee's type of work, the employer must conduct an investigation in terms of section 11(5) of the MHSA.
Willem le Roux
Executive Consultant | mine and occupational health and safety
+27 82 772 5267
Executive | mine and occupational health and safety
+27 83 327 2474
Mine and Occupational Health and Safety | Director
+27 82 708 0548
COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.
No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.