The Compensation for Occupational Injuries and Diseases Act (COIDA) has recently undergone several amendments, bringing about important changes that impact employers and employees.
These changes address various aspects, including rehabilitation, psychosocial support, accidents during training for emergency services, the replacement of mutual associations with licensed businesses, recovery of damages, and prescription periods.
While the effective date of the Amendment Act is yet to be proclaimed by the President, employers should take proactive steps to comply with the amendments in anticipation of such a proclamation. We provide a comprehensive overview of the recent changes to COIDA and highlight key considerations for employers.
The definition of dependents has been expanded, ensuring greater protection for widows and minor children. The inclusion of this provision establishes a clear hierarchy of dependents, ensuring that payments are prioritised for those most in need before being allocated to adult dependents. This approach aims to safeguard the welfare of vulnerable family members.
Furthermore, the definition of occupational diseases has been updated to include post-traumatic stress disorder (PTSD). This aligns with a previous directive and acknowledges the importance of addressing mental health conditions that can result from work-related experiences.
By expanding the scope of occupational diseases, the legislation demonstrates a commitment to comprehensive and inclusive coverage for workers' health and well-being. These amendments contribute to a more equitable and up-to-date framework that reflects the evolving needs and challenges faced by workers in various occupations.
The use of the terms
"Commissioner" will replace the term
"Director-General" wherever it occurs in COIDA except where it occurs in section 18 (accounting), section 30 (mutual associations, now termed Licence to carry out the business of Compensation Fund), section 50 (amendments to Schedule 2), section 55 (amendments to Schedule 2), and section 69 (amendments to Schedule 3).
Rehabilitation and psychosocial support
COIDA has been amended to introduce significant new concepts regarding the rehabilitation of employees who have work-related injuries or occupational diseases in section 16 and 70A (new section) which includes measures, services, and facilities in the form of clinical, vocational, and social rehabilitation. These types of rehabilitation are more fully described in section 70A as:
- clinical rehabilitation and provision of assistive devices for the purpose of physical and phycological recovery of the employee and to reduce any disability resulting from an occupational injury or disease;
- vocational rehabilitation to assist an employee to maintain or obtain employment, regain, or acquire vocational independence; and
- social rehabilitation to assist in restoring an employee’s independence and social integration to the maximum extent practicable.
Amendments to section 42 state that employees must submit to a medical examination for purposes of rehabilitation. The Compensation Fund must provide rehabilitation aimed at reintegrating employees exposed to an occupational injury or disease, back into work and to enable them to attain and maintain, where reasonable and practicable, maximum independence, full physical, mental, social, and vocational ability as well as full inclusion and participation in all aspects of life. In a statement released by the Presidency when the Amendment Act was signed, these changes will require employers to use all available rehabilitation and reintegration processes before laying off an employee. Additionally, employers will be incentivised with assessment rebates for their participation in rehabilitation programmes for employees who qualify for them.
Expanded scope of compensation
Section 22 of COIDA outlines employees' rights to claim benefits in the event of disablement or death resulting from workplace accidents. The scope of compensation has been expanded to include accidents that occur during transportation to or from the place of employment, as well as accidents during transportation for work-related purposes, using any mode of transport. The definition of
"conveyance" is clarified in this regard, stipulating that it commences when an employee reaches the designated pick-up location determined by the employer and ceases upon drop-off at the designated destination. A notable difference is that compensation will still be payable even if such accidents are caused by serious and wilful misconduct of the employee. This new provision is balanced by the changes effected to section 36 which specify that the employer and the Compensation Fund cannot recover damages or compensation paid under COIDA from the Road Accident Fund and in the event an employee is involved in an accident on the road, not arising out of and in the course of an employee’s employment at the time of the accident, the employee shall not be entitled to compensation in terms of COIDA. We anticipate that this will likely give rise to practical challenges and a detailed assessment of facts in each case will be necessary.
Notwithstanding the expanded scope in terms of section 22, the circumstances in which awards may be refused generally is extended to include where an employee refuses to submit to rehabilitation programmes in terms of section 26.
Training for emergency services
Section 25 which deals with accidents during training for, or performance of emergency services, now includes provisions for compensation to employees who have accidents in the course of their work-related training in furtherance of the employer's business.
Business licensing and insurance
Section 30 does away with mutual associations and allows the Minister of Employment and Labour to issue licenses to carry on the business of insurance of employers against their liabilities to employees under COIDA. The Minister may require the licensee to deposit sufficient securities to cover their liabilities with the Compensation Fund or its nominee.
Particulars of a claim
Under the recent amendments, the prescription period for reporting accidents (ie lodging a claim with the Fund) has been extended from 12 months to three years from the date of the accident.
Temporary, total or partial Disablement
Section 48 states that the right to compensation for temporary, total, or partial disablement will expire if the employee is declared medically fit to resume their previous work or other work at the same or greater earnings.
The power to re-assess permanent disablement
Amendments to section 49 empower the commissioner to review pension claims or awards in terms of section 90 at any time for the purpose of re-assessing the permanent disablement. The definition of
"monthly pension" has been expanded to include payments in respect of employees whose occupational disease or injury results in permanent disablement of more than 30 percent. A new section 49A provides for the commencement of monthly pension payments which will be from the date on which a medical practitioner certifies that an employee has reached the maximum medical improvement.
Payment of compensation if an employee dies
Under the previous iteration of section 54, such provisions only applied to employees who died as a result of an occupational injury caused by an accident. These provisions will cover employees who die as a result of an occupational disease as well.
Increases to monthly pensions payable
Section 57 of COIDA previously stated that the Minister may gazette increases to monthly pensions payable on the recommendation of the Director-General, however, this has been amended to require that such increases may only be gazetted after consultation with the Commissioner and the Compensation Board.
Amendments to Schedule 3 (list of occupational diseases)
Amendments effected to the list of occupational diseases covered by COIDA shall no longer have retrospective effect in terms of amended section 69.
Amendments to section 81 increase the period for which employers must retain records to five years from four years. Failure to do so may attract a penalty not exceeding 10 percent of the actual or estimated annual assessments for the period for which the employer failed to keep the record as required. The amendments make provision for electronic records given developments in digitisation.
Objection against commissioner's decisions
Section 91 allows individuals affected by a decision of the commissioner to lodge an objection within 12 months after the decision and must be lodged in the prescribed manner.
Enforcement and penalties for non-compliance
The COID Amendment Act introduces a new chapter specifically dedicated to inspection, compliance, and enforcement. One notable addition is the provision for the appointment of an inspector, as outlined in the new section 93A. Inspectors are tasked with various functions, including advising individuals on their rights, conducting inspections, investigating complaints, and issuing compliance orders when necessary. To carry out their duties effectively, inspectors are granted powers of entry, as stipulated in the new section 93C. However, the wording of this section raises some ambiguity regarding the extent of these powers in relation to workplaces. To address this issue, a written application and notice are required, and authorisation from the Labour Court is necessary. Furthermore, the legislation introduces a new section 93D, which empowers inspectors to inspect and question relevant parties. It is important to note that persons questioned are duty-bound to cooperate and provide truthful answers. Notably, the legislation specifies that the answers provided cannot be used against individuals in criminal proceedings, except in cases of perjury. This provision effectively places individuals under oath without prior warning.
Additionally, compliance orders may be issued, and in the event of non-compliance, the Labour Court has the authority to make them an order of court, as outlined in the new sections 93F and 93G. These amendments aim to enhance the effectiveness of inspection, compliance, and enforcement measures within the relevant framework.
Among the regulations that the minister is empowered to make, amendments to section 97 include those aspects now covered in COIDA by virtue of the amendments, namely:
- the rehabilitation, reintegration and return to work by employees;
- the inspection, compliance, and enforcement of COIDA;
- the determination and calculation of permanent disablement; and
- the appointment of assessors, presiding officers and interpreters.
Amendments to section 99 substitute offences and penalties with fines to be imposed on individuals who fail to comply with sections 39, 40, 47, 64, 68, 81, 82, and 83 of COIDA. Non-compliance is no longer a criminal offence for which an employer may be convicted.
If an employer fails to provide information to the commissioner when requested to do so, The commissioner may impose a 10 percent (and in some cases, plus interest) fine of the actual or estimated annual earnings of that particular year. Additionally, if an employer fails to report an accident as required, a penalty equal to the full amount of compensation payable plus interest from the date of the accident may accrue. Penalties equal to double the full amount of three months' compensation (which employers are obliged to pay over to injured or unwell employees during the first three months of total or partial disablement) payable plus interest may be imposed where employers who fail to do so. Employers who fail to make the necessary conveyance arrangements for employees involved in an accident may be penalised with the full cost of conveyance of injured or diseased employees.
The Webber Wentzel team continues to monitor official announcements regarding the effective date of the amendments, as the changes to COIDA will have far-reaching implications on employers and the true test lies in how these provisions will be implemented and enforced in practice. With greater scope for enforcement, it is anticipated that there may be administrative challenges to overcome. Employers will face the task of navigating rehabilitation processes while balancing them with operational needs and ensuring the fitness of workers to perform their duties. Striking the right balance between rehabilitation and operational requirements will require careful consideration and proactive measures from employers.