On 23 March 2020, a government notice was published regarding compensation for incapacity or disablement or both as a result of occupationally acquired Covid-19. This effectively declared coronavirus to be an occupational disease if an employee contracts it, or it arises, “in the course of his or her work”.
The notice stipulates the following conditions under which Covid-19 is considered to be occupationally acquired:
- Occupational exposure to a known source of Covid-19;
- A reliable diagnosis of Covid-19 as per WHO [World Health Organization] guidelines;
- An approved official trip and travel history to countries and/or areas of high risk for Covid-19 on work assignment;
- A presumed high-risk work environment where transmission of Covid-19 in inherently prevalent; and
- A chronological sequence between the work exposure and the development of symptoms.
Basically, you are considered to have contracted the disease if you can prove that in your workplace you had one or many exposures to confirmed cases of Covid-19; or if you have travelled, for work, to high-risk countries and may have contracted the disease that way.
The notice further stipulates the categories of occupational risk, each with specified actions.
For example, “very high” exposure risk occupations include healthcare workers (like doctors and nurses) performing aerosol-generating procedures and the like on known or suspected Covid-19 patients.
Then there are “high” exposure risk occupations. These are jobs with a high potential for exposure to known or suspected sources of Covid-19. These could be nurses and doctors, ambulance workers, and mortuary workers involved in body preparation, among others.
The other occupational risk categories are “medium” (examples being workplaces with high public contact like schools or consulting rooms) and “low” (especially workplaces with low public contact like offices).
However, the notice does not take into account general employee-to-employee transmission. For instance, working in a “medium” risk occupation, an essential goods delivery worker who has Covid-19 and works elsewhere, may transfer such to you, even possibly via surfaces. This plausible situation should incur compensation cover but is ambiguous in the notice. Nor does it consider the spread from employee to non-employee. What if a family member becomes infected by Covid-19 owing to your occupationally acquired infection? The notice is silent in such cases.
The main Act governing compensation in South Africa is called the Compensation for Occupational Injuries and Diseases Act (Coida), first promulgated in 1993. It falls under the Department of Employment and Labour (DOEL). Coida only covers “employees”, defined as:
“… a person who has entered into or works under a contract of service or of apprenticeship or learnership, with an employer, whether the contract is express or implied, oral or in writing, and whether the remuneration is calculated by time or by work done, or is in cash or in kind…”
Contract, casual or labour broker workers are included. Those not included are any persons employed by the State, SA National Defence Force (SANDF), SA Police Service (SAPS) and domestic workers.
Every registered employer in the country makes a contribution to the Compensation Fund under the charge of the Compensation Commissioner, Vuyo Mafata, who also signed the Covid-19 compensation notice into law. In turn, employers are protected under Section 35 of Coida from employees suing them. However, this “historic agreement” often makes it easier for employers to simply dismiss injured or sick workers to now live off the state without recourse to suing their employer.
In general, Coida pays compensation in two main instances: temporary incapacity and permanent disablement. Now, this could be incapacity or disablement or both caused by Covid-19. Should you, for example, fall off a ladder at work and break your leg, you will be entitled to compensation in line with Temporary Total Disablement (TTD).
The injury would be covered by Coida as it arose out of and in the course of doing your work. Your employer has to report it to the DOEL via specified forms (some employers do not, which is illegal). You should receive the required medical treatment the fund covers. It often takes ages to pay out though, hence the reluctance of many medical professionals in the private sector to accept compensation cases.
In the case of a broken leg, you will only receive compensation in the form of “reasonable” medical costs and 75% of your salary being covered until you have fully recovered. Your employer still has to pay you (for the first three months), but they can claim back such wages from the fund itself. This is called TTD cover. However, should you have any complications related to your broken leg due to the workplace accident, which renders you disabled in some way, you are also entitled to compensation. This is Permanent Disablement (PD) and you are only compensated for loss of function of your limb, not simply for being injured.
Importantly, you shall be paid either a “lump sum” or a “pension”. The former is paid where the impairment suffered is 30% or less of function and is a once-off payment. The latter is applicable in cases of 31% and above loss of function and you shall receive such for life (maximum only 75% of your gross earnings for 100% disability, explained below).
Coida also covers any additional or later medical costs, associated to the occupational injury or disease, “reasonable” homecare (if required) and burial expenses in cases where an employee dies due to the injury or disease.
All this is now applicable to incapacity or disablement (temporary or permanent) or both arising from contracting Covid-19.
You are entitled to be compensated for any temporary or permanent disability suffered from an occupational accident or disease. However, this right is complicated. Should you be 100% disabled from one of the above instances, you will only receive a maximum of 75% of what your gross earnings were at the time of the accident or date of diagnosis. Why only 75%? There is no straight answer. Government officials at the DOEL told New Frame that it is to accommodate for tax, because when you are compensated by the fund, you are not taxed.
Another reason given for only paying a fraction of an employee’s gross income is that a person who is 100% disabled no longer uses all amenities to get to work, such as transport, roads and the relevant public services. However, disabled life is often more expensive: specialised transport, homecare, various specialised medical amenities and more frequent medical check-ups. In many cases, workers disabled from occupational accidents continue to need care. Frequently, homecare is provided, unpaid, by a family member, usually a woman.
Compensation for Covid-19
As with Coida, an employee is compensated for any impairment suffered from the Covid-19 disease, but this can only be determined three months after diagnosis, says the notice. However, it is still not known if permanent damage can occur from Covid-19, leading to permanent disablement or incapacity or both. The notice mentions nothing in anticipation. Regarding suspected or unconfirmed cases, where self-quarantine is recommended by a registered medical practitioner, the employer is liable for payment also. Although the notice does not specify, it is assumed such self-quarantine is less than 30 days, which is the maximum the fund covers.
For confirmed cases, 30 days are granted for compensation, in the same process above. However, the notice is silent on cases requiring more than 30 days of leave or treatment.
Should an employee become permanently disabled from Covid-19, they shall be entitled to compensation, in line with Coida and also the Commissioner’s right to assess each case on its merit.
With global deaths running into tens of thousands, this virus is clearly deadly. But what about permanent damage? Some evidence-based studies have shown permanent lung damage from the outbreaks of other coronaviruses, SARS and MERS. This leads to diseases such as pulmonary fibrosis (or lung scarring). However, on permanent lung damage due to Covid-19, the jury is still out.
Lev Blissett is a pseudonym. Blissett is employed in the mining industry.