On 10 March 2020, Department of Employment and Labour (the DEL) launched the Ergonomics Regulations, 2018 (the Regulations) which came into effect on 6 December 2019. These Regulations fall under the Occupational Health and Safety Act 85 of 1993 as amended (the OHSA) and are intended to protect the health and safety of persons who may be exposed to ergonomic risks in the workplace.
Ergonomics is defined as a scientific discipline concerned with the fundamental understanding of interactions among humans and other elements of a system, and the profession that applies theory, principles, data and methods to design in order to optimise human well-being and overall system performance.
The Minister of Employment and Labour, Mr Thulas Nxesi, emphasised during the launch that the Regulations seek to strike a balance between worker well-being and productivity. In achieving this, the DEL recognises that stakeholder engagement and the role of inspectors are imperative to enhancing compliance. In line with this approach, the DEL has sent approximately 30 inspectors to be trained on ergonomics and these Regulations in order to ensure compliance.
Who do the Regulations apply to?
The Regulations apply to employees, self-employed persons who carry out work at a workplace which may expose any person to physical or cognitive ergonomic risk factors in that workplace and any designer, manufacture or supplier of machinery for use at a workplace.
Regulation 3: Information, instruction and training
Employers are required, in consultation with its health and safety committee, to establish for all employees, mandatories (contractors) or persons other than employees who may be affected or potentially exposed to ergonomic risk a suitable training programme, which includes refresher training on ergonomic risk factors. This programme is not a standalone programme, but should form part of the employer's standard health and safety management system. Ergonomic risk factors are those actions/conditions in the workplace which may cause or aggravate work related musculoskeletal injuries and/or disorders.
Regulation 6: Ergonomic risk assessment
Employers are under a general duty to ensure that the exposure to ergonomic hazards and risks is either prevented or adequately controlled. The employer must ensure that an ergonomic risk assessment is conducted in 2-year intervals or when it becomes invalid or ineffective, by a competent person, prior to the commencement of any work. A competent person is a person who has the necessary training and experience in ergonomics and where applicable, holds qualifications specific to ergonomics and is familiar with the OHSA.
The ergonomic risk assessment must take into account not only the physical ergonomics applicable to the workplace, but also cognitive, organisational and environmental aspects. This assessment must also identify persons who may be affected by ergonomic risk and include a plan and safe work procedure to mitigate and control the hazards and risk factors identified.
Regulation 8: Medical surveillance
In the event that the ergonomic risk assessment reveals that employees are potentially exposed to high ergonomic risk factors, the employer has a duty to ensure that these employees should be placed under medical surveillance. This refers to situations where, for example, employees are potentially exposed to identifiable diseases or adverse health effects due to the nature of their work or an occupational medical practitioner recommends that a particular employee is placed under medical surveillance. Vulnerable employees who would be identified as requiring medical surveillance include, for example, pregnant employees and those employees with pre-existing illnesses.
Importantly, employers are also required to keep record of the training, risk assessment and medical surveillance for prescribed periods ranging from 3 years to 40 years (see Regulation 10).
Offences and penalties
Employers who fail to comply with the Regulations will be guilty of an offence(s) and may be subject to specific penalties as defined by the Regulations. The penalties for non-compliance include imprisonment (for up to 12 months) and/or the payment of a fine.
What does this mean for the employer?
The Regulations are not prescriptive in approach and therefore require that the employer be proactive in identifying ergonomic risk factors in the workplace. However, compliance with the Regulations is imperative. This is achieved through the implementation of an ergonomics programme which clearly identifies all ergonomic risk factors associated with that workplace. In implementing an ergonomics programme, employers must ensure that all employees are properly trained on these Regulations and the risks associated with ergonomics in the workplace.