The national lockdown regulations issued by Government under the Disaster Management Act, 2002 ("Regulations") require every person to be confined to his or her place of residence during the national lockdown, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life- saving, or chronic medical attention.
The Regulations also require all businesses and other entities to cease operations during the lockdown period save for any business or entity involved in the manufacturing, supply, or provision of essential goods.
The national lockdown will be replaced by an alert system with five levels from 1 May 2020. At each level, restrictions would be more or less severe, with certain activities being permitted depending on the level imposed at any time.
Government is thenable to determine the applicable levels at relatively short notice. This could result in different levels being imposed in different geographical areas or different industries. At present the approach of Government is that employers are encouraged to adopt a work-from-home strategy, allowing employees who can work remotely to do so. As a result, many employees will continue to work from home even after the national lockdown. Even though these employees will not be working from their employer’s premises, their employers remain responsible to provide them with a safe and healthy working environment.
In this bulletin, we discuss an employer’s continued health and safety obligations towards employees who are working from home or remotely.
Employer’s duty to ensure a safe and healthy remote working environment
The Occupational Health and Safety Act, 1993 ("OHSA") requires an employer to provide and maintain a working environment that is safe and without risks to the health of employees as far as is reasonably practicable. This includes the duty to identify and remove or mitigate risks or hazards that arise in the workplace.
The ‘workplace’ is defined in the OHSA as any premises or place where a person performs work in the course of his employment. The employer’s duties under the OHSA extend to anywhere the employee performs their work for the employer. This means that an employer must, as far as is reasonably practicable, ensure that the conditions which employees will be working under from home are safe and without risks to the health of the employees.
Understandably, it may not be reasonably practicable for employers to provide such employees with the exact same working conditions they ordinarily enjoy at the employer’s premises. The employer must nevertheless identify the hazards or risks that arise in the employee’s remote working environment and determine how such risks or hazards may be remove or mitigated.
Individual home inspections were not possible or practicable during the lockdown period and employers were probably entitled to rely on the completeness and accuracy of information provided by employees regarding their home working environments.
Going forward employers will have to consider whether it is reasonably practicable to conduct home inspections.
At the same time, employees remain under a corresponding duty in terms of the OHSA to take reasonable care of their own health and safety and that of other persons in the workplace. This includes the duty to cooperate with the employer by complying with any health and safety practices or procedures imposed by the employer in respect of remote work during and after the lockdown period. Employees are also under a duty to inform the employer if they are not able to comply with any of the employer’s prescribed health and safety practices and procedures.
What specific steps can employers take to ensure a safe and healthy remote working environment?
The employer has a duty to carry out a risk assessment to consider aspects such as the home workplace’s ventilation, temperature, lighting, space, chair, desk and computer, electrical cords and supply or any other kind of work station, and if floors are suitable for the tasks the employee is required to perform from home.It requires the employer to consider what work the employee will be performing and whether this can be done safely at the employee’s residence. In ordinary circumstances, an employer may physically inspect an employee’s residence to conduct a risk assessment before authorising employees to work from home.
Where an inspection is not reasonably practicable the employer must consider alternative methods to assess the area in which an employee will be working, including possible virtual inspections of the employee’s workspace. At the very least, the employer should provide its employees with information on how to conduct their own risk assessments of their respective home working environments and ensure that the employer receives the information for assessment. Where employers are able to conduct these risk assessments, the employees should be instructed to only work at workstations that have been inspected and assessed by the employer.
The risk assessment is best conducted within the context of a formal work from home policy. Considering the likely impact of Covi-19 on the world of work employers who have not yet implemented a work from home policy should consider doing so.
Once the relevant risk assessments are conducted, the employer must ensure that its employees are made aware of all identified health and safety risks and the possible measures to remove or mitigate these risks. Employers will need to ensure that employees are able to work in conditions and according to practices that safeguard their physical and mental well-being. In order to achieve this, employers may need to provide employees with advice and guidance on various issues, including the importance of:
- regular contact with friends, family and colleagues to prevent feelings of
- loneliness, isolation, anxiety or depression;
- ergonomics, including comfortable workstations, proper ventilation, safe
- posture, suitable screen positions and eye fatigue avoidance;
- informing the employer of any change in the work environment and not
- implementing any change without the employer’s permission;
- using only employer authorised equipment;
- plans for protecting the personal security of the employee, if relevant;
- suitable fire safety equipment and a first aid kit;
- emergency procedures in the case of an incident;
- regular work breaks and basic exercise; and
- maintaining cleanliness and personal hygiene.
Employers will be required as far as reasonably practicable to provide employees with any equipment or information necessary to promote these practices and to generally ensure that employees enjoy a safe and healthy home working environment.
Of course, there will be significantly reduced health and safety supervision of employees that are working remotely. This further stresses the importance of regular communication between employers and employees to ensure that employees remain safe and healthy and that they continue to comply with the guidelines, practices and procedures implemented by the employer in respect of remote work.
The Covid-19 pandemic is likely to substantially and permanently alter current work practices and procedures. Accordingly, employers who have properly assessed and implemented health and safety controls for remote work arrangements will be better positioned to adapt to the future of the ‘workplace’.
Written by Paul Fouche, Neil Searle and Owethu Mbambo, Fasken