IS YOUR COMPANY PROTECTED AGAINST NON-COMPLIANCE TO THE OCCUPATIONAL HEALTH & SAFETY ACT?
The key responsibilities that are imposed on an employer by the Occupational Health & Safety Act 85 of 1993 (OHSA) are listed in section 8; however, in non-legal terms these are essentially the following:
- A risk assessment must be conducted to reduce any possible risks as far as reasonably practicable
- Use the findings of risk assessments to develop a solution to mitigate any risks found and to create a safe working environment and procedures
- Train the necessary employees on all safety work procedures
- Observe employees at work and apply supervisory controls
- Implement disciplinary action for non-compliance to any company safety rules
In our previous article, we described one of the company responsibilities of risk reduction, which is to ensure that employees are medically fit to perform their work duties.
The OHSA prescribes fitness certification which may impact electrical workers. In addition to the general duties imposed by these laws, the Construction Regulations (Feb 2014) were also published under the OHSA.
What are the possible outcomes of fitness certificates, and how does this affect the duty of the employer?
Fitness certificates may be worded differently but essentially, they all result in one of the following possible outcomes:
- Medically fit without conditions or restrictions.
- Medically fit, but with certain conditions.
- Medically partially fit, as certain restrictions apply.
- Medically unfit.
These conditions and restrictions can be temporary or permanent.
‘Medically fit with conditions’ means that the employee is medically fit to perform his/her duties without any restrictions or accommodation requirements. However, there are certain conditions which must be fulfilled, such as the wearing of spectacles, to have additional protection, or to visit his/her health practitioner regularly for check-ups. The duty placed on the employer is to ensure, as far as possible, that these conditions are met.
‘Medically partially fit due to certain restrictions’ means the employee is able to complete most of his work duties, however there are some aspects that he/she cannot perform; examples include:
o Task restrictions:
- That pose a safety risk to self or others (e.g. driving, working with hot equipment, live electrical circuits, hazardous or hand-held equipment)
- That pose a health risk, for example, welding (chemicals), grinding (noise).
- Unable to perform at the expected productivity rate due to the medical problem which results in lower efficiency (lack of strength, endurance, speed, etc.)
o Place restrictions: Cannot enter certain areas, due to:
- A safety risk to self (e.g. work at or near heights, in a confined space, near deep water, hot surfaces or fires or amongst hazardous machinery).
- A health risk (e.g. areas with high levels of irritant airborne chemicals, noise, dust or heat).
The employer’s duty is to try, as far as reasonably possible, to accommodate the restrictions by assigning suitable alternative work (task redistribution) and if necessary, re-training.
‘Medically unfit’ means the employee cannot perform any or most of the inherent requirements of the job. The employer’s duty is to try, as far as reasonably possible, to find a suitable alternative job for the affected employee.
Where no suitable alternative tasks or job can be found, the employer may proceed with termination of employment on the grounds of incapacity (ill health). The correct procedure for this is described in the Labour Relations Act.
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