On 23 July 2020, the Minister of Employment and Labour published a revised Directive for Compensation of Workplace-Acquired COVID-19 attached.
This Directive must be read with the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). COIDA provides for compensation for injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases.
The purpose of the Directive is to clarify the Compensation Fund’s position with regards to claims for compensation by employees who have acquired COVID-19 at the workplace as result of work-related exposure/s.
Importantly, the Directive provides that a workplace-acquired COVID-19 diagnosis would depend on there being either:
- the presence of an inherent risk posed by the particular category of work or occupation (see further below); or
- exposure to a known source of COVID-19 at the workplace; or
- an approved official trip and travel history to countries and/ or areas of high risk for COVID-19 on work assignment;
AND if any of the above circumstances is present, it then also requires a reliable diagnosis of COVID-19 as per the WHO guidelines as well as a chronological sequence between exposure at the workplace and the development of symptoms.
The Directive recognizes that the Compensation Fund should consider all claims and determine whether the Fund is liable to pay compensation based on all the information that is submitted to it.
However, the Directive also provides that the inherent risk posed by various categories of work and occupations will be considered in addition to an employee’s exposure and clinical history.
In this regard, the Directive makes provision for four levels of risk posed by various categories of work and occupations – the higher the risk, the more likely that the virus was contracted in the course and scope of employment.
These occupational risk levels are as follows:
- Very high exposure risk occupations, being those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, post mortem or laboratory procedures, including healthcare employees, morgue employees and laboratory employees who come into contact with confirmed positive COVID-19 cases or specimens;
- High exposure risk occupations, being those with high potential of exposure to known or suspected patients with COVID-19, including healthcare delivery and support employees, medical transport employees moving patients, and mortuary employees involved in preparing bodies for burial or cremation;
- Medium exposure risk occupations, being those that require frequent and/or close contract (within 1.5 metres) with people who may be infected with COVID-19, but who are not known or suspected COVID-19 patients, such as employees employed in schools, and high-population-density work environments such as labour centres, consulting rooms, point of entry personnel and some high-volume retail settings; and
- Low risk occupations, being those that do not require contact with people known to be or suspected of being infected with COVID-19, nor frequent close contract (within 1.5 metres) with the general public. Employees in this category have minimal occupational contact with the public and other fellow employees.
The Directive further sets out the benefits available to persons who are temporarily or permanently disabled due to infection with COVID-19.
Importantly, the Compensation Fund will not provide compensation for unconfirmed cases which are still being investigated. Accordingly, where an employee self-isolates or self-quarantines, the employer should deal with the employee’s absence in line with the Consolidated COVID-19 Directive on Health and Safety in the Workplace.
In the event that an employer becomes aware than an employee has contracted COVID-19 or is suspected of having contracted COVID-19 as a result of a work-related exposure, it would do well to have regard to this Directive (read with the COIDA) without delay. The Directive explains how reporting must be done and what information and documents will be required to be submitted.