Caution, compensation and COVID-19: Facilities on the frontline
By Nicci Whitear and Sheetal Soni
The COVID-19 regulations provide that every person (with a few limited exceptions) must be confined to their place of residence for the duration of the lockdown. Healthcare workers, such as doctors, nurses, and paramedics, are categorised as essential workers and are exempted from this restriction.
To enforce compliance with the regulations, there are penalties for non-compliance. For instance, they allow any person who intentionally exposes another person to the novel coronavirus to be prosecuted for an offence, which could include assault, attempted murder, or even murder. The regulations also allow for the issuing of a warrant to enforce a period of quarantine or self-isolation where a person is reasonably suspected of having contracted COVID-19, or who has been in contact with a person who is a carrier or infected with COVID-19.
In light of these provisions, and the Occupational Health and Safety Act, employers have a legal obligation to protect healthcare employees from potential infection while they are carrying out their duties. This would include providing healthcare workers with personal protective equipment and sanitisers. Healthcare workers who are not provided with the necessary means to protect themselves from infection may lawfully refuse to work. The South African Medical Association (SAMA) has advised members not to work without the requisite protective gear. The World Health Organisation (WHO) has said that frontline health workers run a very high risk of contracting the disease, especially if they were involved in aerosol generating procedures with a COVID-19 patient, such as intubation, cough induction procedures and bronchoscopies. Healthcare workers at the front desk who simply take the patient's details would be classified as being at high risk.
The Health Professions Council of South Africa (HPCSA) practitioner guidelines state that if a healthcare worker was exposed to a confirmed case, they should be allowed to return to work, but should self-quarantine after hours. They should be actively monitored for developing symptoms and rapidly isolated and tested should they develop any symptoms. Active monitoring would involve a third party checking on the healthcare worker's temperature and vitals at least twice a day for a period of 14 days. Healthcare workers who have been exposed to the virus cannot be tested immediately because it takes time for the levels of the virus in the body to rise sufficiently so that the laboratory tests can identify them. The National Institute of Communicative Diseases (NICD) has said the testing of healthcare workers should be prioritised and they should receive their results within 24 hours. Ideally, they should be tested on day eight following exposure.
Asymptomatic people, during the window where they may even get a false negative test result, are still infectious. Expecting healthcare workers to work as usual after exposure to a COVID-19 case may be the reason for the crises in the St Augustines, Kingsway and Morningside hospitals, resulting in their full or partial closure. While compelling every healthcare worker who has been exposed to the virus to stay at home would cause catastrophic staff shortages, the alternative is just as scary.
If healthcare workers believe they are being asked to work in a way that is placing themselves or patients at risk, they should raise their concerns by following the workplace grievance policy and the HPCSA's guidelines. They should also notify the HPCSA, and/or the Office of Health Standards and Compliance.
If a healthcare worker contracts COVID-19 in the course and scope of their employment, they may claim compensation from the compensation fund in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA). The compensation may be for temporary or permanent disablement, or death benefits for their dependents if they succumb to the infection and die. Compensation for temporary disablement may not exceed 30 days' pay. Compensation for permanent disablement will be calculated on a case by case basis. It has been reported that some people coming off ventilators used during the treatment of COVID-19 suffer significant, permanent damage to their lungs. COIDA does not provide compensation for any period that the healthcare worker has been required to quarantine or self-isolate at home. The Unemployment Insurance Fund (UIF) covers this. The employers of employees covered by COIDA may not sue their employer for compensation or damages in terms of the civil law.
This is not the case with patients who contract COVID-19 because of the negligence of the hospital. Since they are not employees of the hospital, COIDA does not apply. Any patient visiting a healthcare facility, such as a hospital or clinic, has the right to receive reasonable medical care. Reasonable care in this context would mean that the doctors and nurses should take the necessary precautions when treating the patient so that they are not exposed to COVID-19. Any deviation from the reasonably expected standard of care amounts to a potential negligence claim against the healthcare facility or against the Department of Health, if the healthcare facility is a public one. Healthcare workers who suspect they may have been infected with COVID-19 but are forced to continue working, place their patients at risk because their employer orders them to do so. If a doctor working in such a situation does spread the infection to their patient, then not only has there been a failure to adhere to the acceptable standard of care, but the infected patient may have a claim against the Minister of Health. This is because the Minister of Health is vicariously responsible for the conduct of public healthcare workers who expose patients to COVID-19 in the course and scope of their employment.
* Sheetal Soni is a lecturer in the field of Bioethics, International Law, Security & Insolvency and Intellectual Property Law at UKZN's School of Law. She has done consultancy work for the HIV/Aids Vaccines Ethics Group (HAVEG), the Aids and Rights Alliance of South Africa (ARASA), and the National Department of Health.
* Nicci Whitear-Nel is a senior lecturer in the fields of Evidence and Labour law at UKZN's School of Law. Her research interests are in evidence, labour law, legal ethics and legal education.