Since March, employees in South African have been expressly entitled to claim for compensation if they become infected with the COVID-19 virus in the course of their work. Proving that the infection occurred in the workplace, however, could still be difficult, says Grant Nirenstein, director at law firm Knowles Hussain Lindsay Inc.
According to Nirenstein, the March notice by the Compensation Commissioner opened the door for compensation claims resulting from ‘occupationally-acquired’ COVID-19 infections. This was done in terms of the Compensation for Occupational Injuries and Diseases Act – or COIDA – which compensates employees for personal injury occurring in the course of their employment.
“The notice stipulates that occupationally-acquired COVID-19 must result from single or multiple exposures to confirmed cases of COVID-19 in the workplace, or after an official trip to high risk countries or areas,” says Nirenstein. The employee must, of course, have been previously free from COVID-19 infection.
For employees to claim for occupationally-acquired COVID-19, the notice requires them to show occupational exposure to a known source of the virus, and to receive a reliable diagnosis in line with World Health Organisation guidelines. There must also be a chronological sequence between the work exposure and the development of symptoms.
If the employee believes they contracted the virus on a work trip, they must show that the travel was approved and official. They must also document their travel history to countries or areas of high risk for COVID-19. A successful diagnosis for compensation could also rely on a presumed high-risk work environment where transmission of the virus in inherently prevalent.
“It is not yet clear, though, how an employee will prove that the virus was occupationally acquired, and what evidence will be required,” Nirenstein says. “While the employer’s premises may be hygienic and properly sanitised, employees could still contract the virus on their way to work or from shopping in a supermarket. If this happened, the infection would be unrelated to their employment, and therefore would not be compensated.”
COVID-19 not yet listed as a disease in Schedule 3 of COIDA
Another issue relates to Schedule 3 of COIDA, which lists the types of work in which certain occupational diseases can be assumed to have been contracted. Section 66 of COIDA provides that if an employee who has contracted an occupational disease was employed in any work mentioned in Schedule 3 of COIDA, it shall be presumed – unless the contrary is proved – that such disease arose out of and in the course of his employment.
“While this presumption is pragmatic in most cases, COVID-19 is not listed as a disease in Schedule 3,” he says. “The prescriptions contained in section 69 of COIDA, which allow Schedule 3 to be amended, have not been followed. So, the section 66 presumption does not appear to apply to occupationally-acquired COVID-19.”
He notes that this is not to say that the necessary amendment will not be made effective at some point, and this may then be retrospective. In the meantime, though, the Compensation Fund is obliged to make payment to the employee, where it accepts liability. This would include reasonable burial expenses and, where applicable widows’ and dependents’ pensions.
“The rumour that employers would be held liable for all their employees contracting COVID-19 must be taken with a pinch of salt,” says Nirenstein. “At the same time, this does not mean that the employer is freed from payment responsibilities.”
He highlights that the employer is required to pay the employee for the first three months after the illness is contracted. Only after this will the Compensation Fund reimburse the employer. If the employee is absent for longer than three months, then the Compensation Commissioner takes over the monthly payments.
“The employees’ recourse to compensation in no way absolves the employer from ensuring that it complies with its duties to ensure a safe working environment,” he says. “Never before has this been more challenging, and clearly this can only be achieved through effective communication and cooperation between employers and employees.”
He concludes that the Compensation Commissioner’s notice gives a degree of comfort to employees who are at risk of contracting COVID-19. However, it remains to be seen how the occupationally acquired element is to be established.