Subsequent to our bulletin on 11 March 2020, there has been an increased number of confirmed cases in South Africa and the momentum at which the Covid-19 outbreak has disrupted work, business, travel, gatherings (whether it is public or private) has escalated exponentially.
On 11 March 2020, the World Health Organization (‘WHO’), declared Covid-19 a global pandemic.
On 15 March 2020, President Cyril Ramaphosa declared a National State of Disaster and set out various recommendations and/or directions, including the following (to name but a few):
- Suspension of incoming international air travel in relation to high risk countries;
- Persons travelling from medium risk countries to be subjected to testing;
- School closures;
- Avoiding of large gatherings of over 100 people;
- South Africans returning from high risk countries to self-quarantine;
- South Africans to refrain from traveling to high risk countries;
- Domestic travel to be discouraged;
- Having a monitoring system in place; and
- Importantly, all businesses to ensure they intensify measures regarding hygiene control.
Employers are required under law, as well as encouraged to take the necessary precautionary steps at the workplace to prevent or mitigate the exposure or infection of the virus.
This bulletin highlights some steps which employers may take in addressing Covid-19 in the workplace.
THE EMPLOYER’S GENERAL OBLIGATION/S
As mentioned in our earlier bulletin, the Occupational Health and Safety Act 85 of 1993 (‘OHS’) regulates the legal obligations of employers to ensure and maintain a safe working environment.
Ultimately, and as a general overarching duty, the OHS requires employers to take, as far as reasonably practicable, measures to ensure the protection of its employees without risk to their health with the objective to create a safe working environment.
What does this mean given the Covid-19 health crisis/pandemic?
In line with the directives of the WHO and South Africa’s National Institute for Communicable Diseases (NICD), employers are directed, bearing in mind the nature of the work and workplace, to take preventative and/or mitigatory measures to protect the health of its employees and the spread of the outbreak.
For further information, please see the following links:
Examples of reasonably practicable measures which can be taken at the workplace include the following:
- Place hand sanitizers at various accessible areas of the workplace;
- Avoid physical contact such as handshakes;
- Impose travel bans on employees to travel for work, even in areas with medium to low risk to exposure (especially if it requires a gatherings or a congregation of large amounts of people);
- If an employee intends travelling for personal reasons, that employee can be expected to disclose where he or she will be travelling, the duration of the travel, whether he or she will be present in places with a high density of people and the precautionary measures taken to prevent or mitigate risk of exposure etc.;
- Re-assess whether to hold face to face, or ‘in person’, meetings. In other words, attempt to avoid meetings where employees and individuals are in close proximity to each other. As an alternative, using email, video conferencing platforms, what’s app work group chats, tele-conferences etc.; as substitutes;
- Advise employees on self-assessment, symptom reporting and stay at home when ill, given the well-publicized symptoms such as respiratory breathing problems, fever, coughing etc.;
- Provide employees with the contact details of the relevant authority in the event an employee or employees believe they have been exposed or infected whether at the workplace or anywhere else, or otherwise demonstrate such symptoms thereof;
- In keeping with the principle of “self-distancing”:
- consider implementing flexible working arrangements. As an example, the reduction in the amount of employees attending the workplace by structuring alternative working days for some employees to work remotely from home, and on other days, for them to attend the workplace. This measure can operate cyclically and apply to groups of employees at each given time. For those employees who do work from home, they should be encouraged not to attend public places or gatherings or any places which would likely constitute possible high exposure;
- consider whether it would be operationally feasible to direct all employees to work remotely from home. In this respect, an action plan to coordinate the “work remote from home” can then be devised to ensure there is no significant interruption with the operations of the employer and there is in essence a continuation of some level of business operation when this takes effect.
It is pertinent to differentiate between an employee working remotely from home which constitutes the tender of services to the extent reasonably possible, in contrast to, when an employee stays at home and does not tender services. The latter will be addressed below.
Employees who have travelled abroad
In terms of the NICD and WHO Guidelines, persons who have returned to South Africa after having travelled to high risk areas, will be required to self-isolate for at least 14 days. In such an instance:
- If the employee travelled for business reasons, the employer would be obliged to remunerate the employee for the period of self-isolation.
- However, if the employee travelled for personal reasons, the principle of “no work, no-pay” can be invoked and the employer need not pay the employee.
If employees have travelled to low to medium risk areas, they are only obliged to self-isolate if symptomatic. In such instance, we would again recommend that employers consider the obligation to remunerate on a case by case basis depending on the reasons for travel.
Employees who do not wish to attend the workplace
Employers may be confronted with a situation where some employees simply have no intention of attending the workplace. This is especially if the outbreak increases even further which would provide impetus to anxiety, fear, distress etc.
Presuming the employee expresses this intention based on the above fear etc. and stays at home of their own volition, an employer could require that employees take their accrued annual leave during this period and thereafter proceed to unpaid leave once the annual leave entitlement is exhausted.
However, this is distinguishable if an employee is in fact diagnosed with Covid-19 or is declared by their medical practitioner to have a below average immune system which would make them more susceptible to infection.
Employees who are diagnosed with Covid-19 or have been declared by their medical practitioner to have a higher susceptibility of Covid-19 infection based on their below average immune system
If an employee is diagnosed as having been infected with Covid-19, on presentation of a medical certificate, the employee will be entitled to paid sick leave in terms of the Basic Conditions of Employment Act 75 of 1997.
Another pertinent scenario that could present itself is if a medical practitioner diagnoses an employee to have a below average immune system and directs the employee to stay at home because of the higher potential of risk. In our view, this would also constitute paid sick leave.
WHAT ARE THE EMPLOYER’S RIGHTS UNDER THE LRA?
Although as a rather exceptional scenario, should the Covid-19 outbreak become uncontrollable with an unavoidable proliferated infection rate throughout South Africa (similar to countries outside of China such as Italy, Spain, South Korea, Iran, France and Germany) this would place businesses in a very compromised and volatile financial state.
Should an employer’s business irreparably suffer by virtue of a continued or exacerbated Covid-19 health pandemic, an employer would of course be entitled to explore or invoke the provisions of section 189 of the Labour Relations Act 66 of 1995 (“LRA”) in regard to embarking on an operational/retrenchment exercise.
The negative consequence of the Covid-19 crisis on business would be justified as an operational rationale to embark on retrenchment exercise should this significantly and adversely affect the employer’s business for an unsustainable period. This, naturally, would be a last resort and depending on external market forces, the extent employees are able to perform their functions (including working remotely etc.), and impact on infrastructure relied upon by the employer etc.
If some employees do not properly recover from a Covid-19 infection, and the medical condition endured (as each case is assessed individually) appears to have affected their general health which in turns impacts on their ability to fully perform at work, an employer would be required under the LRA and read with Code of Good Practice on Dismissal to convene and undergo a medical incapacity hearing in order to determine the extent the employee is suitably able to perform their functions. Should there be no suitable alternatives, and the period of absence is excessive or indefinite, it will perhaps be justifiable to dismiss the employee based on the ground of medical incapacity or to medically board the employee if there is a policy in place for this eventuality.
Disciplinary steps for misconduct (insubordination, non-Attendance at work etc.)
There may be a scenario where the employer implements certain measures in place to protect the well-being of employees but at the same time ensuring the continued operational viability of the business, however, an employee or a group of employees simply refuse to abide to such reasonable instructions.
In this regard, you will be within your rights to consider taking disciplinary steps against the employee(s). Depending on the severity of the misconduct, and the consistency of workplace discipline, you will be able to issue a verbal warning, written warning, and/or a final written warning. If some employees persist with their misconduct, this could warrant a formal disciplinary hearing at an appropriate stage in the future and possibly leading to dismissal.
Can an employer reduce hours of work or impose a complete shutdown?
An employer can indeed consider either shutting down its operations or reducing the hours of work, as a measure to mitigate the amount of possible exposure during the time employees spend at work.
In such an instance, the employer remains obliged to remunerate its employees.
What if government declares a national shutdown, a supervening impossibility?
In the exceptional event of Covid-19 rapidly increasing to an uncontrollable rate, the Government may be inclined to protect the safety of its citizens and declare a national shutdown.
In this instance, contracts of employment may be said to be suspended by virtue of the supervening impossibility of performance. The obligations of both the employer and the employees are suspended while performance became impossible because of the prevailing circumstances.
Given the temporary nature of the suspension, the employment contract does not come to an end. It simply means that so long as the employee cannot tender his/her services by virtue of the national shutdown, the reciprocal obligation of the employer to pay the employee is suspended.