If my employee is diagnosed with Covid-19 after being admitted to hospital for an accident at work, who pays for her Covid-19 treatment while she is in hospital?
Irrespective the cause for her Covid-19 condition, the Compensation Fund will cover the costs associated with pre-existing ailments (including Covid-19) for the duration of the injured employee’s treatment and convalescence (for the injury sustained in the workplace accident).
Be aware that this applies only in the case that the Compensation Fund finds that the accident is indeed related to the employee's work.
If it transpires that the Covid-19 condition is work-related (which the Compensation Fund will investigate only if the employer reports the disease separately from the accident), then benefits (if any) in respect of the Covid-19 condition will become due. If the employee should become permanently disabled due to Covid-19 (or die), the associated COIDA pension benefits will become due only if the Covid-19 condition was, in fact, work-related.
My employee tested positive for Covid-19 but he had no fever or other symptoms. What must I do now in terms of the Compensation Act?
Because it is possible that the employee has infected or will infect co-workers - and because he may have been infected by a co-worker - the first step is to observe qurantine and tracing protocols.
As far as reporting the disease to the Compensation Fund is concerned, the situation differs from employee to employee.
In the case of the employee who is diagnosed with Covid-19, you must determine whether the employee is likely to have contracted the disease in workplace. If he could have, then it must be reported to the Compensation Fund. If you believe it is unlikely that he could been exposed at work - but the employee believes that he was - then you must report, irrespective your views.
In the case of the employees with whom he came in contact, until any of them is diagnosed with Covid-19, there is no disease to report, so the question of reporting to the Compensation Fund does not arise: where there is nothing to compensate, there is nothing to report;
However, if any of these exposed employees is subsequently diagnosed with Covid-19 (tests positive), then the situation described above for the Covid-19 positive employee applies also to that employee.
Please always bear in mind that the employer needs concern itself only with the reporting of the cases. Remember: the employer is not reporting for statistical purposes but for compensation purposes, therefore the employer should report only those cases that have tested positive and subject to the conditions above.
What leave must an employee be awarded if he contracts Covid-19 in the workplace?
If the employee cannot work because of a disease he contracted at work, the employer must award the employee special leave, provided the Compensation Fund accepts liability for the case:
If liability is accepted, the employer must pay compensation to the employee during the first three months at the rate of 75% of the employee’s regular earnings - for the period that the employee remains Covid-19 positive. (Be aware that the Compensation Act prescribes minimum thresholds as well as ceilings to the amount of compensation).
If the employee remains Covid-19 positive after the initial three-month period, the employee will be entitled to compensation from the Compensation Fund. The employer may continue to pay the employee after the initial three month period. Compensation paid by the employer can be recovered. The process of recovery and the amounts are not entirely straightforward. Please contact us for more information or assistance through the contact page on this website.
What happens if the employee dies from Covid-19 that he contracts in the workplace or is permanently disabled?
The Compensation Act and the Compensation Fund are well versed in dealing with workplace diseases that result in permanent disablement or death. If the claim has been accepted for liability and the employee’s permanent disablement or death results from Covid-19 (or associated treatment), benefits will become due to the employee or his / her dependents;
How will the workplace Covid-19 claims be handled?
The Compensation Fund has a unit dedicated to dealing with occupational diseases. Unfortunately, this unit has typically been extremely slow to resolve matters referred to it. We do not yet have an indication of the effectiveness of the Compensation Fund in dealing with Covid-19 cases in relation to other lung diseases.
The Compensation Commissioner has published a guide stating that some employees will be regarded more likely to acquire Covid-19 at work than others. Examples are medical staff who deal with infected patients or employees who work with large numbers of the public who may be infected. However, he hasn’t stated that he will automatically accept such cases so we must wait to see how these guidelines will translate into benefits to employees and employers.
How do I report the disease?
The requirements for reporting a positive Covid-19 case to the Compensation Fund is published in a government notice available here. The process is the usual one for reporting an occupational lung disease with the addition of the Covid-19 Questionnaire. The basic suite of documents that the employer must complete is contained here. (Requirements for reporting are in flux; please contact us throuigh our contacts page if you require assistance.)
Be aware that occupational diseases must be reported in the prescribed manner and within the prescribed time (14 days of diagnosis). Reporting is done on-line at www.labour.gov.za through the CompEasy system. Employers are required to register on the Department of Employment and Labour's CompEasy system prior to reporting.
What if a Covid-19 positive employee insists he was infected at work but I know it was impossible? I do not want to be involved in a fraudulent Covid-19 claim.
There is a clear distinction in law and in practice between reporting an accident or disease and making a claim. Under section 39(7) of the Compensation Act, employers must report accidents (and diseases) if the employee alleges his injury or illness is work-related. There is ample scope in the statutory employer reports to alert the Compensation Fund to your misgivings should you believe the facts are different from what the employee alleges.
What if a Covid-19 negative employee was exposed to an infected co-worker and demands compensation? Must I report this to the Compensation Fund and, if so, what will I be reporting?
If there is no positive diagnosis there is nothing to report. The prescribed form is the “W.Cl 1 Employers Report of Occupational Disease” which pre-supposes a disease of some sort or another. It would be senseless to report flu-like or Covid-19-like symptoms since a disease is reported by means of two reports: the one from the employer (above) and the other from the treating doctor (W.Cl 22 First Report in Respect of an Occupational Disease”). In the absence of a positive diagnosis, there is no disease to report and the Compensation Act finds no application.
Can I sue the Compensation Fund if they do not accept liability for a Covid-19 case or fail to pay a claim?
Noting that the Compensation Fund has been extraordinarily slow in processing occupational lung disease claims, it is conceivable that Covid-19 claims will be slow to be adjudicated and compensated. Should that be the case, affected persons would probably be allowed access to the courts to seek relief. Unfortunately, workers compensation benefits are typically fairly small and the costs to bring these matters to court are typically far in excess of the benefits that may accrue.
- We can help with reporting occupationally-acquired COVID-19. Clients: Irrespective lcokdown, Covid-19 claims or any other changes, please continue to report all your claims to us.
- Claim numbers are being issued by the new CompEasy system. Clients: Please make sure you have received from us and comply with the COVID-19 reporting policy.
- Not all employers are registered and are able to obtain claim numbers. Clients: Please refer demands made on you (for confidential claim documents) to us.
- The new CompEasy is running although it is not yet fully functional. Clients: We have operated ininterrupted throughout lockdown and continue to do so.
- We are implementing a new telephone system 19 to 25 March 2020. If they occur, please bear with our teething problems.