Saturday | 21 March | 2020
Solidarity Research Institute (SRI)
Healthcare workers are at the forefront of any response to an outbreak of Covid-19, which is why they are severely exposed. Exposure involves not only possible infection with the virus, but also exposure to potential violence; extremely long working hours; as well as psychological issues such as fatigue, professional burnout and the stigma associated with the virus.
According to Solidarity Chief Executive Dr Dirk Hermann, healthcare workers will play a crucial role in the fight against Covid-19 and they must be protected.
Solidarity’s online learning platform, S-leer, is in the process of developing a comprehensive course aimed at training healthcare workers on the use and disposal of personal protective equipment (PPE); clinical care for patients with Covid-19; infection prevention and control; risk management and communication as well as occupational health and safety. See https://corona.org.za/ for the latest information.
This question-and-answer-style article aims to inform and empower healthcare workers (including all support personnel working in a healthcare institution) about their rights regarding the coronavirus.
Question 1: What legal authority is applicable to my work situation?
According to Phil Davel, labour law adviser at Solidarity, the President has wide powers under the Disaster Management Act, as amended, to put in place measures to control and combat the effects of any disaster. These measures include “any other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster”. Under this Act, the government can intervene and make regulations as is deemed necessary.
Davel advises that only existing legal authority and labour legislation, with the Constitution as the supreme authority, should be applicable until any further steps, legislative amendments or regulations are announced by the President.
Existing labour legislation comprise the following:
- Section 23(1) of the Constitution provides that everyone has the right to fair labour practices.
- Section 185 of Labour Relations Act (LRA) provides that employees have the right not be unfairly dismissed and not to be subjected to unfair labour practice.
- The Basic Conditions of Employment Act (BCEA) gives effect to the right contained in section 23(1) of the Constitution by introducing, enforcing and providing for the regulation of basic conditions of employment such as working hours, leave and termination of service (section 2).
- The Occupational Health and Safety Act places an obligation on the employer to ensure as far as is reasonably practicable, a workplace that is safe and without risk to the health of the employees (section 8 (1)).
Question 2: As a healthcare worker, what are my rights in the workplace?
According to the World Health Organization (WHO), healthcare workers should have the following rights:
- It is the employer’s responsibility to ensure that all the necessary preventative and protective measures are taken to minimise occupational safety and health risks for healthcare workers. These include the following:
- Implementation of occupational health and safety systems to identify and analyse dangers and risks.
- Implementation of measures to prevent or control the spread of the virus.
- A policy of zero tolerance regarding violence and harassment in the workplace.
- The employer should provide information, instructions and training on occupational health and safety. This includes the following:
- Training to improve skills in the prevention and control of infections; and
- The use and disposal of personal protective equipment (PPE).
- The employer should provide adequate PPE supplies in sufficient quantities to healthcare workers.
- The employer has a duty to familiarise healthcare workers with updates regarding Covid-19 and to provide appropriate tools for assessing, triage, testing and treating patients.
- If necessary, the employer is required to ensure healthcare workers’ personal safety regarding possible violence that may erupt.
- Employers should put measures in place for healthcare workers to report incidents such as cases where they have been exposed to blood or bodily fluids of patients.
- Healthcare institutions should advise employees to self-assess continuously, report symptoms and stay home when they feel ill.
- Employees must be encouraged to work a reasonable number of hours with regular breaks in between.
- Employers must regularly consult with experts on occupational health and safety and notify the authorities about cases of occupational disease.
- Employees should not be required to continue working or to return to a healthcare institution where there is continuing danger to life, unless the employer has taken the necessary steps to ensure the health and safety of its employees.
- Employers must acknowledge their employees’ right to remove themselves from a life-threatening situation.
- Employers must grant the employee’s right to compensation, rehabilitation and curative services if an employee is infected with Covid-19 while providing a professional service. It will be classified as occupational exposure and the resulting illness will be considered an occupational disease.
- Healthcare institutions should give employees access to mental health services.
- Employers should maintain a good cooperation agreement with employees.
Question 3: Am I entitled to leave the workplace if I have symptoms of the virus?
- Point seven of the healthcare worker’s rights, as outlined by the World Health Organisation, indicates that healthcare institutions should advise employees to self-assess continuously, report symptoms and stay home when they feel ill.
Sick leave is regulated by sections 22 and 23 of the Basic Conditions of Employment Act. Employees will still have to justify their absence from work by submitting a valid medical certificate if the employee has been absent for more than two consecutive days due to illness. If a medical doctor quarantines an employee, the employee must obtain a medical certificate and be entitled to sick leave.
If the employee does not have sick leave at his/her disposal, it will be regarded as a period of unpaid leave, unless he/she has annual leave available and requests that this should be used for payment purposes.
The first labour-related court case on Covid-19 may come before the Labour Court soon. This comes after a healthcare worker treated a patient who presented symptoms of Covid-19, and then the healthcare worker was denied leave and forced to continue examining other patients.
These actions of the employer contravene the rights of the healthcare worker as outlined in this article.
In light of this, Solidarity encourages health workers to lay claim to these rights so that the safety of the larger community served by them can be ensured.
* All information was correct at the time of publication.