Covid-19 is a highly-transmittable virus that spreads through respiratory droplets produced when an infected person coughs or sneezes and between people in close contact. Countries already infected have discouraged or prohibited collective gatherings at venues such as movie theatres, schools, universities and even places of worship.
The President recently announced a nation-wide lockdown in South Africa for 21 days commencing at midnight on Thursday 26 March 2020 until midnight on Thursday 16 April 2020. Under lockdown and in terms of the Regulations to the Disaster Management Act 57 of 2002, every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving, or chronic medical attention. Every gathering is prohibited, except for funeral; movement between provinces and between the metropolitan and district areas are prohibited.
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Legal obligations of employers
Section 8 of the Occupational Health and Safety Act, 1993 (OHSA) requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to the health of its employees.
This duty includes (i) taking steps to eliminate or mitigate any hazard or potential hazard, before resorting to personal protective equipment; (ii) providing information, instructions, training and supervision that may be necessary to ensure the health and safety of employees at work; and (iii) enforcing such measures as may be necessary in the interests of health and safety. Section 9 extends these duties towards persons other than those in his employment who may be affected by the employer’s activities.
The General Safety Regulations published under the OHSA prohibit an employer from permitting a person to enter a workplace where the health and safety of such person is at risk.
Employers may accordingly impose rules on their employees in order to ensure a safe working environment and, in addition, it may place conditions on entry into its premises. Employers may exclude persons from their premises if they do not abide by those rules.
It is on this basis that for instance entry to building sites may be subject to the wearing of hard hats and other protective clothing.
In light of Covid-19, a legitimate entry requirement may be requiring the disclosure of recent international travel and subjecting individuals to a temperature test, if necessary. Any such test must be conducted with due regard to the individual’s privacy and the individual’s informed consent should first be obtained. The temperature test itself should be as un-invasive as possible, and screeners as opposed to thermometers placed in the ear or mouth, are advisable.
If an individual refuses to be subjected to a temperature test, the employer may rely on other available information, such as persistent coughing or sneezing, and must then take appropriate measures.
The Environmental Regulations issued in terms of the OHSA provide, inter alia, that the employer must ensure that its workplace premises are ventilated in such a way that the air breathed by the employees does not endanger their safety.
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Legal obligations of employees
The OHSA also imposes a duty on employees to take reasonable care for their own health and safety and that of other persons who may be affected in the workplace. Employees who act in violation of an employer’s health and safety rules or who disobey reasonable and lawful instructions in this regard may be subjected to appropriate disciplinary action. Blatant disregard for such rules or instructions could potentially be grounds for dismissal on the basis of misconduct.
If an employee becomes aware of a situation that is unsafe or unhealthy, s/he must report such a situation to the employer as soon as practicable possible. In the context of Covid-19, this may include a suspicion that a fellow-employee or customer / client exhibits flu-like symptoms or is running a fever. The employer should then take appropriate steps, such as requesting the individual concerned to submit to a temperature test, and to require the person concerned to leave the premises if need be. Again, such testing may only be conducted with the individual’s informed consent.
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Delictual liability of employers
The Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA) protects the employer from delictual liability in respect of employees who contract an illness during the course and scope of her / his employment. An employee who contracts an occupational disease can claim from the Compensation Fund without having to prove the employer’s negligence.
However, if the employer was in fact negligent, the employee may receive increased compensation and the cost of such increased compensation may be passed on to the employer in the form of increased assessment rates.
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Sick leave policy
Certain categories of essential services and business are permitted to remain open, and naturally their employees are likewise exempted from the lockdown in so far as they perform essential work. The President also confirmed that employers and their employees who are able to continue remotely are encouraged to do so.
It therefore follows that there will be three categories of employees during the lockdown, being essential employees in essential businesses who would continue to work; employees who are not employed by essential business but who can work remotely, and employees who are not employed by essential business and who can not work remotely,
Labour legislation does not make provision for emergency sick or annual leave for instances such as the present or for the distinction between the above categories of employees. Any absence from the workplace without permission must however still be justified by the employee by means of a medical certificate in the event that the employee has been absent from work for more than two consecutive working days or on the third occasion during an eight week cycle.
Employees should however be encouraged to disclose general symptoms of a cold or flu to the HR Department without delay. Such employees will be required to stay at home until such time they are fit to return to work. They will however still be required to justify their absence by means of a medical certificate issued by a registered medical practitioner. Should the employee be able to justify absence from work by means of such a certificate, the period of absence will be paid from the employee’s sick leave entitlement. Should the employee not have sufficient sick leave available, such absence will unfortunately be without any remuneration or benefits, unless annual leave is available for payment purposes or if otherwise decided by the employer.
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Employer-imposed precautionary quarantine
Given that this is an employer imposed period of quarantine, the employer should assess whether it is possible for the employee to work from home.
If this is possible, no leave will be applicable as the employee would be working from home.
If this is not possible, the employer should consider awarding special paid leave to the employee as it was made compulsory by the employer. Depending on the employer’s leave policy, it may impose annual leave.
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Employee self-quarantine
Depending on the reasons for the request for self-quarantine, the employer may allow the employee to work from home. If not, the employee can be requested to take annual leave. If the employee has no annual leave available, the employee can be placed on unpaid leave for the period of quarantine.
Nothing stops the employer from implementing special paid leave should it be practical and affordable.
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Government imposed quarantine of employee.
Given that this is a government-imposed instruction and not at the request of the employer or employee, the employer will need to apply its mind carefully to this circumstance as this may amount to a force majeure or supervening impossibility of performance which ultimately means that the employer is unable to fulfil its obligations under the contract of employment, and the employer will then be able to implement the no-work-no-pay principle, this is naturally a last resort.
All employees in South Africa as a condition of their employment are entitled to leave provisions as set out in the Basic Conditions of Employment Act. The BCEA recognizes certain forms of leave, which may, depending on the circumstances, be applicable to the employee’s absence as a result of COVID-19.
During the lockdown period, an employee may be requested by the employer to take annual leave from his/her annual leave credits. The BCEA allows employers to determine the time that employees can take their annual leave.
The South African Government has requested that although employers are within their rights to insist that employees take annual leave during the lockdown, employers are requested not to force their employees to utilize their annual leave credits for the lockdown, but to rather utilize the financial assistance that the department has placed at their disposal through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees
All workers who contract the Covid-19 virus at their places of employment will also be supported through the Workmen’s Compensation Fund and Unemployment Insurance Fund (UIF) for sick benefits.
Discussions regarding additional UIF benefits are still in progress and will hopefully be concluded in the very neat future.
In an event that an employee is required to be quarantined for longer than 14 days, such leave will be recognized as a special leave and that employee will be eligible to apply for unemployment insurance benefits.
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Compiled by:
Tiaan Oberholzer, Alicia van Wyk and Henry Jacobs, All Attorneys at Waldick Inc. Riaan Waldick from Curvest Labour Law Consultants assisted.
Disclaimer
Kindly note that the above is not intended to serve as legal advice. It is an opinion based on the current legislation (including regulations) as at the date of publication hereof. The legislation and the practical implementation thereof changes regularly and may impact on what is stated above. Each case must therefore be dealt with on its own merits.
