Ready for "life after lockdown"? Legal considerations for mines in getting safely back to work

NOTE: On 21 April 2020, the Association of Mineworkers and Construction Workers of South Africa brought an urgent application in the Labour Court (Johannesburg)  against the Minister of Mineral Resources and Energy, the Chief Inspector of Mines, the Minister of COGTA and the Minerals Council seeking to declare Covid-19 a health hazard under the Mine Health and Safety Act and for a mandatory code of practice to be issued. We are monitoring the matter closely and will keep you appraised of developments.​​

Employers will have to take various steps to comply with directives and protect their employees when normal operations are allowed to resume after the Covid-19 lockdown period.

In this note, we highlight the important issues.

 

1. Know which rules still apply and make sure you apply them.
  • Essential services operating during lockdown: strictly adhere to all safety measures, limitations on movement and transport, documentation and permitting of employees and take all necessary precautions relating to hygiene in the workplace. It is important to note that gatherings during this period (other than at a funeral) are prohibited.
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  • All operations, either during lockdown or while ramping up and increasing capacity, must comply with the additional conditions relating to a program for screening and testing, quarantine facilities, data collection and submission and transport arrangements.
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  • Back to work after lockdown:
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    • the state of disaster (currently in force until 15 June 2020, or any date determined by the President of South Africa) remains in place. After that, employers must "revert" to compliance with the measures that were in place before the lockdown. Recent amendments to the regulations have removed the reference to 100 persons in the definition of a "gathering", while the regulation prohibiting all gatherings remains in place, post-lockdown.
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    • Ensure compliance with any directives or amended regulations on incremental return to full capacity. Current regulations indicate that this will be determined by directives over time by the Minister of Mineral Resources and Energy.

     

  • Obligations to test for, quarantine, isolate and treat Covid-19 will also remain in place. Employers should ensure that workplace systems enable compliance with these obligations and should not prevent or hinder employees from complying if they become, or are suspected to be, ill.

2. Keep abreast of governmental directives and guidelines.

  • Provision and use of Personal Protective Equipment (PPE)
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    • Based on a risk assessment, employers must determine the appropriate PPE for employees. Employees must be trained to use the PPE, bearing in mind that some PPE, such as gloves and masks, may increase employees’ risk, if not managed correctly.
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    • There is no specific legal guideline in the Mine Health and Safety Act dealing with the spread of hazardous biological agents in the workplace. Employers could draw on guidance from legislation such as the Occupational Health and Safety Act, which indicates that, where there is a risk of droplet spread, PPE must be provided if persons may come within 1 metre of one another.
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    • The National Department of Health is recommending that all citizens use cloth masks and that N95 masks and surgical masks are reserved for medical and health care workers.
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    • The Department of Mineral Resources and Energy (DMRE) has instructed that all mining employees be issued with N95 masks or dust masks. Employers are encouraged to conduct detailed risk assessments, including considerations of availability, hygiene, protection and other workplace-specific issues such as ergonomic safety and practicality, to determine the best protection possible for employees. In some industries, this will be, for example, face shields that provide complete protection from droplet spread, rather than masks.

     

  • DMRE Guiding Principles document issued on 26 March 2020
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    • Although it was initially prepared to assist mining companies conducting essential services during the lockdown period, the guiding principles on preparedness, mitigation and management of Covid-19 exposure in the mining industry is a useful tool for all employers. Employers should aim to apply the best available scientific evidence to decision-making.
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    • Employers must conduct a risk assessment covering all working areas to: (a) consider the risk of exposure of vulnerable employees; (b) assess where employees may conduct activities or work with materials that may exposure them to Covid-19; (c) assess required and appropriate social distancing at all times when a number of employees may be in the same area; and (d) review all relevant policies.
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    • Key risk areas and guidelines for risk mitigation action include:
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      • Reduce densities in areas where employees may congregate or be in close quarters. When necessary, provide PPE;
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      • Assess the risks of the use of breathalysers and biometrics and properly control those risks if these systems will be used, including complying with the DMRE-issued guidelines on the use of breathalysers;
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      • Align and update existing medical and hygiene programs to fully address Covid-19;
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      • Have clear procedures in place to deal with employees who have or display symptoms of Covid-19, particularly when these develop during a shift.

    3. Consider the risks of employees that were away from the workplace.

    • Employers should consider whether to conduct full medical fitness assessments and, if so, how they can be done safely.
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    • Will employees undergo full induction training? If so, how will this be managed in light of the social distancing and hygiene requirements?
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    • Are there other factors that may have impacted employee readiness to return to work safely while employees were away? This could include keeping up with chronic medication, proper nutrition, emotional stress and distraction etc.

    4. Evaluate and update existing risk assessments and work procedures.

    • Existing risk assessments, procedures and systems must be updated to cater for the new impacts and management of Covid-19. This will include changes to systems such as training (material and how it is provided), waiting place procedures and first aid, among others. Most systems will be affected to some degree by measures required to manage Covid-19.
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    • Codes of practice, specifically dealing with employee health, must be reviewed and amended. Employers may wish to consider further measures to limit exposure or to manage risks for employees who may be at a higher risk due to underlying conditions.

    5. Consider additional environmental impacts which will need to be managed once 'business-as-usual' recommences.

    • How will healthcare waste generated during and after the lockdown be classified and managed or disposed of? Consider all waste management obligations, protocols and norms and standards which will need to be applied.
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    • Will any medical equipment installed on site need to be licensed or permitted?
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    • Post-lockdown sanitation and sterilisation protocols may require additional products and chemicals to be used, stored and handled on site. This requires reviewing supply chain readiness and potentially licensing dangerous goods/substances storage and handling on site.
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    • Increased consideration of water and sewage treatment processes, installations and protocols, as well as associated training requirements.

    6. Determine what new measures may need to be implemented and put those in place.

    • Entirely new systems and protocols must be adopted, implemented and maintained. These may include isolation protocols, changes to access control and changes to employees’ transport systems.
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    • If the new hygiene and social distancing measures impact how the work is usually done, further risk assessments and training may be required. It may be necessary to consider the longer-term impact of the control measures to deal with Covid-19 and guard against any unintended negative consequences or additional risks unwittingly created.

    7. Consider the status of all rights and permits.

    • Have all requisite reports (and applications for renewal) been timeously submitted to the DMRE?
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    • Are the current approved mining work programmes and social and labour plans still accurate or do they require amendment?
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    • Will operations be downscaled or resume as they were prior to the lockdown? 

    8. Keep everyone in the loop and armed with proper, credible information.

    • New communication systems and topics may be required. Clear, consistent and reliable information will help to keep employees safe. Employers could consider hotlines to give advice to concerned employees. Keeping track of potential "fake news" and dealing with it swiftly is also advisable.

    9. Protect employees’ medical information.

    • Protocols must be established to manage the risk of spreading Covid-19 while complying with data and privacy laws and staying within the prescripts of the confidentiality of medical information.

    10. Keep thinking ahead and have plans in place to mitigate the risks of the "what ifs" too.

    • Have a clear emergency plan in case there is a confirmed positive Covid-19 diagnosis in the workplace.

    11. Be aware of employers’ legal liability.

    • Transmission of Covid-19 in the workplace is not necessarily occupationally acquired and employee compensation legislation may not automatically apply. Employers who fail to take reasonable measures to protect employees may face damages claims.
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    • A failure to take reasonably practicable measures to address and control the risk to employees’ health may lead to enforcement action by the DMRE. In addition, the MHSA creates a number of statutory offences, including where the negligence of the employers leads to the serious illness of an employee.​