Nehawu launches urgent court bid over protective gear for health workers

It has been more than two weeks since President Cyril Ramaphosa announced special measures to combat the Covid-19 pandemic. Yet across the country workers at the frontline of fighting the virus still do not have personal protective equipment — gowns, masks and gloves. Nor has the government put in place guidelines for what should happen when there is no protective gear, said the National Health and Allied Workers Union (Nehawu) in court papers.

Nehawu has gone urgently to the labour court, saying the health and lives of healthcare workers were at risk, as was the health of everyone they come into contact with — their families, co-workers and people they meet as they travel to work.

“For each day that this continues, thousands of employees and members of the public are at grave risk of infection,” Nehawu’s general secretary, Zola Saphetha, said in an affidavit. 

The Mail & Guardian understands that court papers on behalf of the ministers of health and labour were being drafted on Monday. We will continue to report on case as it unfolds. 

At a press briefing on Friday, Deputy Health Minister Joe Phaahla is reported to have said that the gear would be arriving over the weekend or early this week. He cited global demand and the weakening of the rand for the delay, reports said. 

Nehawu wants the court to force the health and labour ministers and provincial health departments to “meaningfully engage” with the union on measures to mitigate the risk. Nehawu also wants the court to order a report-back to the court on the outcome or progress of the engagement. And, while this engagement proceeds, it wants the court to say that the relevant workers cannot be forced to work without personal protective equipment, or PPE. 

In his affidavit — filed on Friday — Saphetha said the Occupational Health and Safety Act and the government’s own guidelines for the management of Covid-19 in the public service required that workers be provided with PPE when appropriate. The requirements of the Act have not been suspended by the declaration of a state of disaster, he said.

Health workers at risk

After the announcement of the lockdown, “Nehawu has observed and recorded many cases of healthcare workers, including its members, working in circumstances which expose them to occupational risk without the necessary PPE,” said Saphetha.

In his affidavit, Saphetha lists a number of hospitals and clinics at which healthcare workers are without the proper protective gear — some have no gowns; others have no masks and sanitisers.

The absence of any guideline for what is to be done where there was no protective gear meant that employees were faced with an “unfair” choice: “To assume the risk anyway, or to refuse to endanger their health and lives, and those of others.

“The latter carries with it uncertain consequences for employees … It also carries the risk that in the absence of guidelines from the first respondent [the health minister], health facilities and patients will suffer should healthcare workers refuse to carry out their functions in an unsafe environment,” the affidavit read.

The government’s conduct was “most unsatisfactory, especially in present times of uncertainty and great panic,” said Saphetha.

Attempts by the union to reach out to the ministers have been rebuffed, he said. They had simply not responded to requests to meet or not attended when meetings had been agreed, he said. When the government finally requested a meeting — on April 2 — it was with the national director of labour relations, said Saphetha. 

“However, I informed him that given the applicant’s [Nehawu’s] previous formal requests to meet with the minister, which were not honoured with a meaningful response, any meeting between the parties should be with the presence of the minister,” he said.

A court-ordered engagement would force the government to “explore reasonable possibilities of protecting employees … while combatting the Covid-19 virus”, said Saphetha.

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