In terms of OCCUPATIONAL HEALTH AND SAFETY ACT (“OHSA”) an employer is required to ensure that the workplace is safe for the employees. The standard is set out in section 8 which provides that every employer shall provide and maintain, as far as is reasonably practicable, working environment that is safe and without risk to the health of his employees.
However on a construction site, a principal contractor is responsible for the safety of whole site. Accordingly a principal contractor is required to comply with the construction regulations issued under section 43 of OHSA.
In terms of regulation 9, a contractor must, before the commencement of any construction work and during such construction work, have risk assessments performed by a competent person, appointed in writing, which risk assessment forms part of the Health and Safety Plan to be applied on the site and must include the identification of the risk and hazards to which persons may be exposed to. “Hazards” is defined broadly as meaning ‘a source of or exposure to danger’. For some employees, with underlying medical conditions, contracting Covid 19 may represent an exposure to danger.
Risk is defined as the probability that injury or damage will occur. Exposure to Covid 19 does not necessarily mean that there is a probability of injury or damage.
While this regulation regulates the risk assessment for construction work, in our view this would include exposure to the Covid 19 by virtue of the employee’s presence on the construction site and possible exposure to infected employees and third parties.
We recommend that health and safety plans in terms of regulation 7 should incorporate measures to deal with coronavirus and Covid 19. 2 is implemented and maintained on the construction site.
In our view this would include taking appropriate measures to avoid the spread of infection of Covid 19 and appropriate steps to take when an employee of yours or a subcontractor tests positive for Covid 19. In this regard your health and safety officer must have an appropriate protocol informed by medical advice and the Government / Department of Health guidelines issued and as amended as the situation evolves.
As a principal contractor, you are required to ensure that all employees have a valid medical certificate of fitness, specific to the construction work to be performed, and to be issued by an occupational health practitioner as provided for in the form of annexure 3 to the regulations. This requirement becomes important for employees who have recovered from the virus and who present themselves back for work and who are required to work in environments that are high risk such as rope access work or scaffolding etc.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact The Construction Platform on 011-234 2125 or email@example.com.