Before COVID, Occupational Safety and Health (OSH) was a serious compliance area due to the interface between the health of the employees and the workplace environment. During and post-COVID era, OSH has become an even more critical component of compliance due to the nature and effect of this disease, and the risks posed to the employees’ physical and mental health.  In a recent speech, the Kenyan President announced the lifting of curfew that has been ongoing since the first case of COVID19 was reported in Kenya in April of 2020. This provided relief to Kenyan business and their employees, but what cannot be overlooked is the effect the pandemic has had on workplaces.  The pandemic has forever changed the manner in which people work and interact.  Occupational Safety Health Act No.15 of 2007 (OSH) As an employer in Kenya, the Occupational Safety Health Act No.15 of 2007 (OSH) provides for the basic guidelines on occupational health and safety requirements in a workplace. Section 6 of the Act, requires the following compliance from an employer in relation to OSH:   The provision and maintenance of plant and systems and procedures of work that are safe and without risks to health; Arrangements for ensuring safety and absence of risks to health in connection with the use, handling of substances or articles; The provision of such information and training as is necessary to ensure the safety and health at work of every person employed;  The maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and exit from it that are safe and without such risks to health; The provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employee’s welfare;  Informing all persons employed of (i) any risks from new technologies and (ii) imminent danger; and Ensuring that every person employed participates in the application and review of safety and health measures.  Occupational Safety and Health (OSH) in The Post Pandemic Work Environment It is important to critically look at some of these duties in light of the ongoing OSH practices in the post-COVID era work environment.  For instance, how does an employer ensure that they are compliant with the requirements of OSH and are also adaptable to the eccentricities of the COVID-19 work environment?  s.6(a):  The provision and maintenance of plant and systems and procedures of work that are safe and without risks to health In the early days of the pandemic and in the subsequent waves, the Kenyan Government advised many employers to adopt a work from home policy for their employees. This has now become the norm for most workplaces that have adopted either hybrid work arrangements or fully remote working arrangements.  These hybrid or remote arrangements have meant that employers had to put in place infrastructure such as computers, laptops, desks and chairs for those employees that need to work from home.  Some questions that come to mind are:  What happens to employers who cannot afford to purchase or shift the required infrastructure from the office to the home setting? Whose duty is it to provide for this equipment? Does it fall on the employee, employer or both to improvise under these circumstances?  Who should bear the cost? What happens when an employee suffers a health injury like back pain and neck pain due to sitting for long hours in the wrong posture on an unsuitable chair? How should an employer deal with an employee that lives in a noisy and/or inadequately lit area?  The employer can resolve some of these issues arising through some very practical solutions outlined below:  Put in place clear policy guidelines for remote working arrangements, and share these with the workforce. Where an employer cannot afford to purchase separate equipment for home use, they could provide transport for the office furniture to be shifted from the office to the homes of the employees to avoid unnecessary physical strain or injuries. Ensure that the employee confirms that he /she can work from their home environment. If not, let them work from the office or a designated and OSH compliant workspace. Ensure that the OSH Committee or Human Resource team regularly checks in with the remote employees to confirm that they have the necessary work tools, and are in the right mental frame to work remotely.  Employers should not assume that employees have conducive remote working environments. They should check and ensure that the remote spaces are conducive and OSH compliant. s.6(c)The provision of such information and training as is necessary to ensure the safety and health at work of every person employed; Before COVID, we were already living in a society with information overload especially with the proliferation of social media.  With this, it is very easy to share too much unnecessary information and/ or false information.  During the pandemic and post-COVID, it is imperative that employers ensure that an appropriate amount of information and also the right information is shared with their employees.  Employers must remember that information shared during or post-pandemic can help in educating the workforce with containment of the disease and educate them on the usefulness of getting vaccinated.   An employer can ensure compliance in this area is by having in place a safety committee which should:   Send out factual and verified information on a regular basis to employees. This may be done via email, short message services or through planned virtual meetings. Avoid information overload to avoid apathy amongst the employees. Any information especially relating to the cause, effects, cure or vaccines to curb the spread of the disease must be from an authorised government source such as the Ministry of Health Kenya (MoH) or the World Health Organisation (WHO).  Provide virtual and /or physical training (depending on the circumstances) on matters relating to OSH and specifically COVID-19. e.g., mental health awareness, myths […] The post OCCUPATIONAL SAFETY AND HEALTH COMPLIANCE IN A POST-COVID19 ERA appeared first on Umsizi LLP.

Before COVID, Occupational Safety and Health (OSH) was a serious compliance area due to the interface between the health of the employees and the workplace environment. During and post-COVID era, OSH has become an even more critical component of compliance due to the nature and effect of this disease, and the risks posed to the employees’ physical and mental health. 

In a recent speech, the Kenyan President announced the lifting of curfew that has been ongoing since the first case of COVID19 was reported in Kenya in April of 2020. This provided relief to Kenyan business and their employees, but what cannot be overlooked is the effect the pandemic has had on workplaces.  The pandemic has forever changed the manner in which people work and interact. 

Occupational Safety Health Act No.15 of 2007 (OSH)

As an employer in Kenya, the Occupational Safety Health Act No.15 of 2007 (OSH) provides for the basic guidelines on occupational health and safety requirements in a workplace. Section 6 of the Act, requires the following compliance from an employer in relation to OSH:  

• The provision and maintenance of plant and systems and procedures of work that are safe and without risks to health;
• Arrangements for ensuring safety and absence of risks to health in connection with the use, handling of substances or articles;
• The provision of such information and training as is necessary to ensure the safety and health at work of every person employed; 
• The maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and exit from it that are safe and without such risks to health;
• The provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employee’s welfare; 
• Informing all persons employed of (i) any risks from new technologies and (ii) imminent danger; and
• Ensuring that every person employed participates in the application and review of safety and health measures. 

Occupational Safety and Health (OSH) in The Post Pandemic Work Environment

It is important to critically look at some of these duties in light of the ongoing OSH practices in the post-COVID era work environment. 

For instance, how does an employer ensure that they are compliant with the requirements of OSH and are also adaptable to the eccentricities of the COVID-19 work environment? 

s.6(a):  The provision and maintenance of plant and systems and procedures of work that are safe and without risks to health

In the early days of the pandemic and in the subsequent waves, the Kenyan Government advised many employers to adopt a work from home policy for their employees. This has now become the norm for most workplaces that have adopted either hybrid work arrangements or fully remote working arrangements. 

These hybrid or remote arrangements have meant that employers had to put in place infrastructure such as computers, laptops, desks and chairs for those employees that need to work from home. 

Some questions that come to mind are:  What happens to employers who cannot afford to purchase or shift the required infrastructure from the office to the home setting? Whose duty is it to provide for this equipment? Does it fall on the employee, employer or both to improvise under these circumstances?  Who should bear the cost? What happens when an employee suffers a health injury like back pain and neck pain due to sitting for long hours in the wrong posture on an unsuitable chair? How should an employer deal with an employee that lives in a noisy and/or inadequately lit area? 

The employer can resolve some of these issues arising through some very practical solutions outlined below: 

• Put in place clear policy guidelines for remote working arrangements, and share these with the workforce.
• Where an employer cannot afford to purchase separate equipment for home use, they could provide transport for the office furniture to be shifted from the office to the homes of the employees to avoid unnecessary physical strain or injuries.
• Ensure that the employee confirms that he /she can work from their home environment. If not, let them work from the office or a designated and OSH compliant workspace.
• Ensure that the OSH Committee or Human Resource team regularly checks in with the remote employees to confirm that they have the necessary work tools, and are in the right mental frame to work remotely. 

Employers should not assume that employees have conducive remote working environments. They should check and ensure that the remote spaces are conducive and OSH compliant.

s.6(c)The provision of such information and training as is necessary to ensure the safety and health at work of every person employed;

Before COVID, we were already living in a society with information overload especially with the proliferation of social media.  With this, it is very easy to share too much unnecessary information and/ or false information. 

During the pandemic and post-COVID, it is imperative that employers ensure that an appropriate amount of information and also the right information is shared with their employees. 

Employers must remember that information shared during or post-pandemic can help in educating the workforce with containment of the disease and educate them on the usefulness of getting vaccinated.  

An employer can ensure compliance in this area is by having in place a safety committee which should:  

• Send out factual and verified information on a regular basis to employees. This may be done via email, short message services or through planned virtual meetings.
• Avoid information overload to avoid apathy amongst the employees.
• Any information especially relating to the cause, effects, cure or vaccines to curb the spread of the disease must be from an authorised government source such as the Ministry of Health Kenya (MoH) or the World Health Organisation (WHO). 
• Provide virtual and /or physical training (depending on the circumstances) on matters relating to OSH and specifically COVID-19. e.g., mental health awareness, myths around COVID vaccines and vaccination etc.
• Keep a register of any incidents and learnings relating to Occupational Safety and Health & COVID-19, for future reference and learning.

s.6(d) The maintenance of any workplace under the occupier’s control, in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks to health;

In a situation where employees are working remotely, it is difficult for the employer to control the workspace since they do not have access to the employee’ private home or living quarters. 

However as explained in s.6(c) above, despite the fact that there is no physical access to the employee’s home, the employer needs to regularly check in with the employee and confirm that the work-from-home arrangements are conducive for work.

Where the employer notices that work performance is declining, or the employee is reporting increased work-related injuries or health problems such as stress, fatigue or burnout, or the employee indicates that the remote working environment has changed and is no longer conducive for work, the employer should request the employee to report back to the office, work in a hybrid manner and/or seek the relevant medical attention. 

s.6(e)The provision and maintenance of a working environment for every person employed that is, safe, without risks to health, and adequate as regards facilities and arrangements for the employee’s welfare.

Exposure at Work

In some instances, an employer may find that the employees can be sufficiently social distanced at the workplace, or they are able to work in shifts. This type of scenario creates an occupational health risk due to the fact the employees interact with the outside world and also come into the workplace with possible COVID exposures. 

Since employers are required to ensure that every person employed is safe and without risks to the health of other employees, what happens where an employee claims that they have been exposed to COVID either through work activities or through a co-worker, how does an employer deal with this risk and what possible liability that may follow? 

The Labour Court of South Africa, Johannesburg in Case No. JR1644/20 found that the Employer (Eskort Limited) had rightfully and fairly terminated the employment of the employee (Mr. Mogosti) on grounds that he had endangered the lives of his fellow co-employees and by extension their families, by coming to his workplace after testing and being found to be positive with COVID-19. The Employee had continued to interact with his fellow employees without a mask and without regard for the Employer’s set policies and guidelines relating to COVID-19.

The South African case is thus jurisprudential and critical in Kenya by acting as a guide at workplaces to both employers and employees who are needed to observe the COVID-19 protocols in their day-to-day duties. And also, relevant in self-isolation where employees or employees are tested and found positive with COVID-19 virus. 

It is noteworthy to state an employer may not be able to eliminate all risks, but can try to mitigate some risks faced by its employees through the following mechanisms: 

Being guided by the Occupational Safety and Health Post COVID-19 Return to Work Advisory. The advisory requires the employer to: 

• • Carry out occupational safety and health risk assessments; 
  • Develop and communicate COVID-19 policies and workplace readiness procedures;  
  • Sensitize employees on COVID-19 risk mitigation measures at home, in transit and at the workplace; 
  • Ensure workplace safety and health with a focus on prevention and minimization of transmission risk at the workplace; 
  • Carry out medical examinations and issuance of certificates of fitness; 
  • Carry out health risk assessments for returning employees; 
  • Prepare guidelines on handling suspected and confirmed COVID-19 Employees; 
  • Prepare guidelines on the non-discrimination of suspected and confirmed COVID-19 employees; 
  • Prepare guidelines on reporting of COVID-19 Positive Employees by Medical Practitioners; 
  • Ensure the workplace is duly registered; 
  • Prepare guidelines on the handling of employees with a pre-existing medical condition; 
  • Taking out medical insurance for the treatment of COVID-19 related ailments if possible;  
  • Ensuring that the updated Human Resource policies have clear etiquette on COVID-19 matters and clear repercussions for the infringement of the laid down policies and procedures.  

Mental Health 

In some situations, the employees may require mental health checks due to the stressful effects of being directly or indirectly affected by the pandemic. This stress may personally affect them, and their work output. 

In such instances, an employer may need to provide access to a mental health practitioner to address these health challenges as rising mental health challenges are a worrying global trend.  The employer could either employ or contract the mental practitioners for ease of access to the employees.

COVID Vaccines and the Anti-Vaxxers 

Another new development has been the development and availability of COVID-19 vaccines in the Country.  According to the MoH Immunisation Status Report, the total percentage of vaccinated Kenyans are only at 3.1% as of September 2021. Despite more availability of vaccines, there has been anti-vaccine rhetoric from different quarters which has affected the uptake of vaccines in vulnerable populations.  

How then do you handle anti-vaxxers at the workplace and how does this affect the vaccinated co-worker who could become exposed?  

Globally, this is an area of jurisprudence that is still in development. Some people have claimed that where an employer forces an employee to take a vaccine against their will, this is an infringement of human rights while some claim that it is a public health issue and any direction to take up vaccines should be adhered to by all.  

In Kenya, it is noteworthy to state that the Government through a Circular, the Head of Public Service directed all public servants to get vaccinated or face disciplinary action.  In the Circular, he observed that some public servants had deliberately avoided getting vaccinated to avoid work which had negatively affected public service delivery.

It is clear how the public sector and Government intends to move forward with the issue, however, it remains unclear how the private sector will handle this risk as it is an imminent one. 

I believe that in a few more months with more vaccine availability there should be more jurisprudence to guide the issue, but the indications are that employers may start requiring proof of vaccination for continued employment for the safety of the workforce and work environment. 

s.6(f) Informing all persons employed of (i) any risks from new technologies and (ii) imminent danger; 

Employers also have to be cognizant of the effects technology has on employees in a work from home or hybrid work environment.

Simply put there is an excessive amount of contact with computer screens than ever before and less physical interaction with human beings. In fact, a new term explaining this overexposure has been coined and goes by “Zoom Fatigue”. 

Zoom fatigue refers to tiredness, worry or burnout associated with the overuse of virtual platforms for communication and meetings, particularly videoconferencing. It essentially explains why people feel more drained and lower in energy after virtual meetings.

Research has also found that excessive exposure to the light from computer screens is damaging to the eye and therefore needs to be limited. Further, the longer employees interact through videoconferencing platforms, the more immobile they are. This is not good for their overall physical health and could lead to severe back and neck pain where there are no in-built breaks. 

Employers, therefore, need to have clear guidelines on how employees should use these tools and technologies.  Employers should also have guidelines limiting how much time or how many meetings employees should have in a day. The aim is to maintain a stress-free, healthy and motivated workforce whether they are working in the office or from remote locations.

s.6(g) Ensuring that every person employed participates in the application and review of safety and health measures. 

Last but not least, there is a need for the involvement of employees in the OSH framework. It is not wise to have the employer impose procedures and guidelines without ensuring consultative forums with employees. 

Some quick and easy ways to ensure a bottom-up approach include: 

• Safety and Health Committee:  Put in place a safety and health committee with the employer and employee representatives, to address any matters relating to OSH.
• Safety and Health Meetings:  Ensuring safety and health meetings with the employees take place on a monthly or quarterly basis. This ensures that matters relating to OSH within the Organisation are fully addressed, and where policies or procedures need updating, this is done.
• Safety and Health Register: This register is to track any OSH matters that affect the Organisation and workforce. Any OSH matters raised and the lessons learned should be recorded in the register for future learning and reference.
• Safety and Health Policies and Guidelines: Ensure that clear safety and health policies are written, and easily accessible to all employees at all times to avoid ambiguity.

In summary, employers will need to approach the post-COVID work environment in a more holistic way since the ground has forever shifted. This will ensure a healthy, safe and protected workforce, & an Occupational Safety and Health compliant workplace. A win-win situation for both employers and employees! 

The post OCCUPATIONAL SAFETY AND HEALTH COMPLIANCE IN A POST-COVID19 ERA appeared first on Umsizi LLP.

View Entire Post