Are Remote Working Employees covered by COIDA?
Working from home became more common after the COVID-19 Pandemic. The reality of remote work is now one that is here to stay with many employers adopting remote work either fully or in a hybrid models.
With so many now working remotely, the main question is if someone's home is considered a "workplace" when they work from there as an employee.
This has big effects under South Africa's Health and Safety Laws, and for getting compensation for work-related injuries and illnesses.
SOUTH AFRICAN HEALTH AND SAFETY LAWS AND COMPENSATION LAWS
In South Africa, a distinction is made between the provisions of Health and safety Laws, which regulate health and safety in the workplace, namely the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”) and the Mine Health and Safety Act, No. 29 of 1996 (“MHSA”), and compensation that becomes payable in the event that an employee sustains an occupational injury or contracts an occupational disease which is compensatable.
Injuries, fatal or non-fatal, can be compensated under COIDA. The Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993, covers all types of injuries. COIDA provides compensation for both fatal and non-fatal injuries.
With regard to the Compensation Laws, COIDA applies to all employers, regardless of the industry.
Occupational diseases are also compensatable under COIDA.
WHAT CONSTITUTES A “WORKPLACE” UNDER THE OHSA
The term “workplace” is defined in Section 1 of the OHSA to mean “… any premises or place where a person performs work in the course of his (or her) employment”.
The term “work” means “… work as an employee or as a self-employed person, and for such purpose an employee is deemed to be at work during the time that he is in the course of his employment …”.
Employees working from home are usually considered to be working within the scope of their employment. Therefore, their home is considered a workplace under the OHSA.
The word "employer" is described in Section 1 of the OHSA as any individual who hires or offers employment to any individual and compensates that individual.
The word "employee" as per Section 1 of the OHSA, refers to any individual who is hired by or works for an employer, and who gets or is eligible to get any payment, or who operates under the guidance or supervision of an employer or any other individual.
Individuals who are hired by an employer and perform their duties from their home or dwelling are considered employees of that employer.
Equipment such as computers, laptops, printers, etc. would constitute “machinery”.
The General Machinery Regulations place various responsibilities on the “user” of machinery. The term “user” is defined in Section 1 of the OHSA to mean the person who uses the machinery for his/her own benefit or who has the right of control over the use of such plant or machinery, but does not include a lessor of, or any person employed in connection with that machinery.
Employees operating from their homes are considered the "user" and must adhere to the appropriate stipulations of the OHSA and its Regulations, particularly if they own the equipment/machinery they are using.
Nonetheless, if the employer supplies the equipment/machinery, it is the employer's responsibility to adhere to the stipulations of the OHSA and its Regulations concerning such equipment/machinery.
WHAT PROVISIONS OF THE OHSA APPLY TO THE HOME/RESIDENCE AS A “WORKPLACE”
As an employer, a company's responsibilities are not absolute. They are based on what is "reasonably practicable".
The term “reasonably practicable” is defined to include four components, namely
(a) the extent and seriousness of the potential danger or risk involved
(b) the degree of comprehension feasibly attainable about that hazard or threat and any strategies for mitigating or lessening that hazard or threat.
(c) the accessibility and appropriateness of methods to eliminate or lessen that danger or threat
(d) the expense associated with eliminating or reducing that threat or danger in comparison to the advantages gained from it
The employer would therefore be required, to the extent reasonably practicable, to comply with the responsibilities set out, particularly, in Sections 8 and 13 of the OHSA, which in summary, require the following:
- Conducting appropriate hazard identification and risk assessments
- Enacting suitable strategies to tackle the recognized hazards and evaluated risks, which include codes of conduct, norms, processes, and directives;
- Establishing a suitable health and safety education and communication plan that is designed to convey the recognized hazards and evaluated risks, along with the strategies to be put in place to prevent these risks from occurring;
- Appointment of competent supervisors; and
- Implementing a system of over inspection.
Employers need to identify potential hazards that employees may encounter while working from home. They should then inform their employees about these risks and the safety measures in place. The assessment needs to focus on identifying actions that can create a safe work environment. This assessment must consider what is reasonably possible to ensure a safe work environment.
Employers do not need to do individual assessments in each employee's home. Instead, they should identify common hazards, provide general safety instructions, and remind employees to be aware of potential risks at home.
Importantly, the OHSA also places responsibilities for health and safety on employees themselves.
Section 14 of the OHSA provides that every employee must take reasonable care of their own health and safety and of other persons who may be affected by their acts or omissions.
While the person’s home/residence may be a “workplace”, incidents and accidents that must be investigated and reported in terms of the OHSA are only those incidents and accidents which are directly in the course and scope of the person’s employment with the employer. For example, if a person, while printing a document, sustains a paper cut, this would be an incident/accident that would need to be investigated and reported in terms of the OHSA.
The definition of "course and scope" is broad. The meaning of "course and scope" is wide. For example, if someone slips on a puddle, it doesn't have to be looked into or reported under OHSA.
In most cases, the IBRA to be conducted by the company/employer would address basic themes, including:
(a) fatigue management
(b) illumination
(c) ventilation
(d) equipment such as laptops
(e) slip and trip/stairs
Appropriate procedures, instructions and communications should then be prepared and distributed to each of the employees working from home, which are aimed at addressing the identified hazards and the assessed risks, and how to avoid these hazards and risks from eventuating.
COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES
For the purposes of COIDA, the focus is not so much on the “workplace”, but rather, whether the employer was acting in the course and scope of his/her employment. Compensation may be paid when a person is traveling between two work locations as part of their job.
In terms of Section 22(3) of COIDA if an accident is attributable to the serious and wilful misconduct of an employee, no compensation is payable in terms of COIDA unless the incident results in serious disablement or the employee dies in consequence thereof, leaving a dependant wholly financially dependant on the employee.
Section 22(4) of COIDA provides that for the purposes of COIDA as follows:
- an accident is deemed to have arisen out of and in the course of the employment of an employee notwithstanding that the employee was at the time of the accident acting contrary to any law applicable to his/her employment or to any order by or on behalf of his/her employer, or
- that he/she was acting without any order of his/her employer, if the employee was, in the opinion of the Director General, acting for the purposes of or in the interest of or in connection with the business of the employer.
If employees work from home and have an accident, they will be covered by COIDA. This coverage includes compensation for injuries or accidents. If an employee dies, their dependents will also receive compensation. This includes compensation for the employee or their dependents if the employee passes away.
SUMMARY
The OHSA considers an employee's home as part of the workplace. Both the company as the employer and the individual employee have responsibilities in their roles at work.
Employers should do a safety assessment for employees working from home to address common hazards related to their job duties.
For instance, you don't need to cover every part of the home or every activity. Instead, use the IBRA to create a procedure that tells employees how to handle hazards and risks. Make sure to share the IBRA and procedure with all employees.
If employees get hurt while working from home, they can get compensation under COIDA for their injuries.
Do you need a Quote for our Tax and Accounting Services?
Contact our team via any of the following channels to get a proposal for your accounting and tax services:
Subscribe to our newsletters.
Disclaimer:
The views or opinions expressed on this site are solely those of the original authors and other contributors.
The material and information contained on this website is for general information purposes only.
This information is for general purposes only. Don't use this information for making business, legal and tax decisions without consulting a professional.
We do not make any express or implied representation, as to the completeness or accuracy of the information published.
Tax law regularly changes, so any tax information on this site could become outdated.
We are not responsible for any other websites that you may access through links on our website.
ZPA accepts no liability for any loss or damage arising from the use of any material on this site.
