April 21, 2020
COVID-19: NAVIGATING THE WORKPLACE
IMPLEMENTATION OF WORK AND SAFETY IN THE WORKPLACE
During this difficult period and as the number of cases surge, every employer must ensure that they comply and carry out their obligations in terms of the South African Labour Laws. In terms of the Occupational Health and Safety Act, 1993 an employer is required to put measures in place to ensure protection of the health and safety of its employees at work. The employer has an obligation to provide a working environment that is safe and without risk to the health and safety of his employees.
STEPS TO BE TAKEN BY EMPLOYERS IN COMPLIANCE WITH ITS OBLIGATIONS IN TERMS OF THE OCCUPATIONAL HEALTH AND SAFETY ACT, 1993
Consequent to the COVID-19 pandemic employers will need to put in place various precautionary measures to reduce the spread of the virus. We recommend that reasonable measures include limited contact with colleagues, suppliers, clients, random walk-ins, daily door-to-door deliveries, etc. In implementing reasonable measures, we understand that communication is crucial in running every business and employers also have a duty to ensure that the business remains sustainable. Measures taken by employers will depend on the type of business and they may include, but are not limited to the following:
· request that documents be sent and received electronically;
· encouraging remote meetings via video or telephone conferencing;
· where remote meetings are not possible clients are required to confirm whether they have recently returned from international travel or have flu-like symptoms;
· regular cleaning of offices and commonly touched surfaces;
· provision and compulsory use of alcohol-based hand sanitizers by all staff and clients;
· a 14-day self-quarantine for any employee who has returned from travel to any high-risk destination in the last two weeks.
CAN AN EMPLOYER FORCE AN EMPLOYEE TO SUBMIT TO A TEST?
The symptoms of COVID-19 include an itchy throat, fever, cough, shortness of breath and breathing difficulties. In more serious cases, it can cause pneumonia, kidney failure and may also result in death. That said, an employee displaying these symptoms may be required to undergo compulsory testing for the virus.
CAN AN EMPLOYEE REFUSE TO UNDERGO SUCH TESTS?
As of 18 March 2020, and as part of the Disaster Management Act the legislature has introduced Regulations under Government Gazette No. 43107 to reduce the spread of the virus. In terms of Regulation 4, no person who has been clinically, or by a laboratory, confirmed as having COVID-19, or who is suspected of having contracted COVID-19, or who has been in contact with a person who is a carrier of COVID–19, may refuse consent to an enforcement officer for:
· submission of that person to a medical examination, including but not limited to the taking of any bodily sample by a person authorised in law to do so;
· admission of that person to a health establishment or a quarantine or isolation site; or
· submission of that person to mandatory prophylaxis, treatment, isolation or quarantine or isolation in order to prevent transmission.
The provision goes further to provide a contingency plan should any person refuse consent. Should any person be unco-operative that person must be placed in isolation or quarantine for a period of 48 hours pending a warrant being issued by a magistrate, on application by an enforcement officer for the medical examination. As a consequence of this provision no one can refuse consent to submit for testing, employees included. Employers may report the employee to any “enforcement officer” who may intervene in any given situation. The Regulation defines an “enforcement officer” as any member of the South African Police Service, the South African National Defence Force and a "peace officer" as defined in the Criminal Procedure Act.
ALTERNATIVE WORKING ARRANGEMENTS SUCH AS WORKING FROM HOME
An employee, out of fear of contracting the virus cannot demand to work from home where they have not been authorised to do so by their employer. An employer cannot dismiss the employee for doing so but must instead consult the employee first to understand their concerns and what measures can be taken to eliminate such concerns. The employer must first consult with an employee to avoid any unfair dismissal disputes.
However, an employer which, after a full assessment of whether remote working is achievable or not, allows employees to work from home, bears the duty to provide the employees with the appropriate tools such as internet connection, laptops, printers and scanners where required in order to execute their respective duties. If employers request their employees to work from home, employees will be entitled to their full compensation including benefits as per the norm. This again must be assessed on a case by case basis and may not be achievable for all employees and all businesses.
WHAT HAPPENS IF EMPLOYEES SELF-QUARANTINE OR ARE QUARANTINED
According to Employment and Labour Minister Thulas Nxesi, during an address at the Executive Committee meeting on 16 March 2020, “special paid leave” provisions may be triggered and become applicable as follows:
· leave will be recognised as special leave which is fully paid as long as it meets the quarantine provisions and the employee can apply for Unemployment Insurance Fund (UIF);
· where employees contract COVID-19 in the course and scope of employment they will be entitled to compensation in line with the provisions of the Compensation for Occupational Injuries and Deceases Act;
· the short term UIF benefit will also be triggered where companies are forced to close shop as a precautionary measure.
How this will work in practice is still unclear. There will need to be clarity as to what exactly is meant by “meeting the quarantine provisions” to be eligible for UIF.