Section

Provision

Commentary

Section 2- Definition of Occupational Hygiene.

“occupational hygiene” means the physical conditions, agents, materials or substances present in a working or community environment, which may cause sickness, impaired health and wellbeing, or significant discomfort and inefficiency among employees or among other persons.

As a duty employers are required to maintain occupational hygiene which in times of COVID-19 entails that employees are in a safe environment

Section 11 – Employers with more than 10 employees.

An employer of ten or more persons at any workplace shall establish a health and safety committee.

It is mandatory for an employer who employers ten or more persons to establish a health and safety committee at the workplace.

Section 12 – Composition of health and safety committee.

12. (1) A health and safety committee established in accordance with section eleven shall—

(a) consist of an equal number of members, not less than two on each side, representing the employer and the employees

Provided that the representatives of the employees shall be chosen by the employees or designated by a trade union and be chaired by a person elected from amongst the employee representatives or by the employer or the senior most member of management on an alternating basis.

A health and safety committee should consist of at least four members with not less than two representing both the employer and the employee.

The health and safety committee should be chaired by an employee’s representative or by the employer or the senior most member of the management. The chairing position should be alternated.

Section 14 (3) – Display of committee members.

An employer shall display or cause to be displayed in a conspicuous place, the names of the health and safety committee representatives.

Employees in the workplace must be informed about the members of the health and safety committee.

Section 15 – Reasonably practicable measure to be taken to ensure workplace health and safety.

In determining what is, or was, at any particular time, reasonably practicable in relation to ensuring health and safety at a workplace, regard shall be had to the following matters:

(a) the likelihood of the hazard or risk concerned occurring;

(b) the degree of harm that would result if the hazard or risk occurred;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk; and

(e) the cost of eliminating or reducing the hazard or risk.

The factors listed in section 15 are to be taken into account when determining what measures to put in place in a workplace to ensure health and safety at the workplace.

Section 16 –

Duty to employees and types of employees.

16. (1) Notwithstanding any other written law, an employer shall—

(a) ensure, so far as is reasonably practicable, the health, safety and welfare of the employees of the employer at a workplace; and

(b) place and maintain an employee in an occupational environment adapted to the employee’s physical, physiological and psychological ability.

An employer is required to ensure the health and safety and welfare of employees at the workplace taking into account the factors listed in section 15.

An employer is also required to maintain an occupational environment that is suitable to the employee’s physical, physiological and physiological abilities.

Employers can rely on this provision in order to establish policies in the work place to protect employees from COVID-19.

Section 16 (2) – Duties in respect of plant, systems, devices, articles and information.

(2) Without prejudice to the generality of subsection (1), an employer shall—

(a) provide plant and systems of work that are, so far as is reasonably practicable, safe and without any risks to human health and maintain them in that condition;

(b) ensure, so far as is reasonably practicable, that articles, devices, items and substances provided for the use of the employees at a workplace are used, handled, stored and transported in a manner that is safe and without any risk to the health and safety of the employees at the workplace;

(c) provide such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety of the employees at their workplace;

(d) so far as is reasonably practicable, maintain a workplace under the employer’s control, in a condition that is safe and without any risk to the health and safety of employees at their workplace;

(e) so far as is reasonably practicable, provide and maintain

the means of access to, or exit from, a workplace that are safe and without any risk to the health and safety of the employees using it;

(f) provide and maintain a working environment for the employees that is, so far as is reasonably practicable, safe and without any risks to their health and safety, and which is adequate as regards facilities and arrangements for their welfare at the workplace;

(g) inform and consult a health and safety representative—

(i) where an authorised officer visits the workplace, and give the health and safety representative an opportunity to meet the authorised officer;

(ii) on the circumstances and future prevention of any injury or illness;

(iii) on the circumstances of any injury for which a claim has been submitted to the Workers’ Compensation Fund Control Board; or

(iv) with a view to making and maintaining arrangements to enable the employer and the employees to cooperate effectively in promoting and developing measures to ensure the health and safety of the employees at the workplace, and checking the effectiveness of those measures;

(h) provide for measures to deal with emergencies and accidents, including adequate first-aid arrangements;

(i) provide at the employer’s expense all appropriate protective clothing or equipment to be used in the workplace by employees, who in the course of employment, are likely to be exposed to the risk of bodily injuries, and adequate instructions in the use of such protective clothing or equipment; and

(j) do for, or provide to, the employees, free of charge, anything which by law is required to be provided to those employees by the employer.

Employers are required to provide information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety of the employees at their workplace. In light of the COVID-19 pandemic employers are required to provide employees with information on how to remain safe from contracting the virus.

Employers are also required to so far as is reasonably practicable, maintain a work place under the employer’s control, in a condition that is safe and without any risk to the health and safety of employees at their workplace. Employers must therefore, ensure that during this pandemic they take necessary measures to such as constantly sanitizing surfaces and making sanitizer available at the workplace.

Section 16 (3) – Offence and penalties.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable, upon conviction, to a fine not exceeding

five hundred thousand penalty units or to imprisonment for a period not exceeding five years, or to both.

Any failure by an employer to place the mandatory measures in place in the workplace is an offence and may upon conviction result in fine not exceeding ZMW 150, 000.00 or imprisonment for a period not exceeding five years or both.

Employers must therefore, ensure they are compliant to avoid liability.

Section 18 –

Duty to customers and visitors.

18. (1) An employer shall, so far as is reasonably practicable, conduct the employer’s undertaking in such a way that persons who are not employed by that employer and who may be affected by activities at the employer’s workplace are not exposed to risks to their health or safety.

(2) A self-employed person shall conduct that person’s undertaking, so far as is reasonably practicable, in such a way as to ensure that, that person and other persons who are not employed by that person and who may be affected by that person’s activities are not exposed to risks to their health or safety.

Employers are also required to ensure that the workplace is safe for persons other than employees who visit the workplace.

Section 19 – Obligations of other persons having responsibilities on a workplace i.e cleaning companies

19. (1) A person who has the management or control of —

(a) a workplace or of the means of access to, or exit from, any workplace; or

(b) any plant or substance in a workplace; shall take such measures as are reasonable for a person in that position to take so as to ensure, so far as is reasonably practicable, that the workplace, or means of access to, or exit from, that workplace are available for use by persons using the workplace, and any plant or substance in the workplace provided for use in that workplace is safe and does not cause any risk to the health or safety of the persons using them.

Employers and persons who have management or control of workplaces or any plant or substances in the workplace are required to take measures to ensure that the workplace or means of access of the workplace are available and any plant or substance in the workplace is safe and does not cause risk to the health and safety of those using them.

(2) For the purposes of subsection (1), a person who, by virtue of any contract or lease, has an obligation to—

(a) maintain or repair any workplace or any means of access to, or exit from, that workplace; or

(b) ensure the health and safety of persons using any workplace, against risks arising from any plant or substances in that workplace; shall be treated as the person in control of the workplace.

Persons who have any responsibilities in respect of a workplace, i.e. cleaning services, constructions, restoration works etc may have the same responsibilities as the landlord/tenant employer.

Section 24 – Prohibition against dismissal of employees who raise health and safety concerns.

24. (1) An employer shall not dismiss an employee, alter the employee’s position or terms of employment or threaten to dismiss the employee or alter the employee’s position or terms of employment to that employee’s detriment because the employee—

(a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health;

(b) is or has been a member of a health and safety committee or is or has been a health and safety representative;

(c) exercises or has exercised a power as a health and safety representative or a member of a health and safety committee;

(d) assists or has assisted, or gives or has given any information to an authorised officer, a health and safety representative or committee;

(e) complies with the directives of an authorised officer; or

(f) gives evidence before any court.

Employers are prohibited from  dismissing or victimizing employees because the employee for instance made a complaint about the health and safety in the workplace or is member of a health and safety committee.