The effect of the Covid-19 on the South African employer and employee
A contagious disease known as Coronavirus or Covid-19 (“the Virus”) was first detected in China in December 2019 and has since regrettably spread worldwide.
The World Health Organisation (“the WHO”) has declared the virus as a Public Health Emergency of International Concern (“PHEIC”) which is a formal declaration by the WHO of "an extraordinary event which is determined to constitute a public health risk to other States through the international spread of disease and to potentially require a coordinated international response", formulated when a situation arises that is "serious, sudden, unusual or unexpected", which "carries implications for public health beyond the affected state's national border" and "may require immediate international action”. In light of the above, and the seriousness thereof, Employers worldwide have commenced putting in place plans to prepare for the risk of their Employees becoming exposed to or ill with the Virus as a result of infiltration of the Virus into the work place or work environment.
Accordingly, South African Employers must act immediately in this regard.
The Effect of the Virus on the South African Employer and Employee
What only just recently seemed to be a concern to be watched from afar with no real effect on the day to day employment of a working South African or business owner is officially a past tense scenario. In the past few days we have received several enquiries from both Employees and Employers alike in respect of what the Virus or potential risk of the Virus infiltrating a workplace or work environment will be in respect of issues such as compliance with South African labour laws; whether it be sick leave benefits, implementation of working from home or remote work indulgences as well as compliance with health legislation in the workplace or working environment.
It has become quite apparent from these recent enquiries that both Employers and Employees are in a state of panic. However, as devastating as the effects of the Virus has been outside of South Africa to date resulting in the loss of lives – South Africans or foreign businesses conducting trade in South Africa employing large portions of the South African work force still need to ensure that despite the panic and the reality of the Virus spreading further and further, laws are still to be abided by. That said, during this time it should also be noted that this is a first time detectable human virus and therefore labour laws could be relaxed by agreement between the Employer and Employee. Furthermore, Employee contractual obligations could be waived, or indulgences granted by the Employer so that the spread of the Virus does not affect an Employee’s income or an Employer’s revenue as far as reasonably possible during this time.
Implementation of Health and Safety in the Workplace
In order for Employers to ensure that they are complying with South African labour laws during this concerning period, it is imperative for the Employer to implement the rules and regulations of the Occupational Health and Safety Act 85 of 1993 (“the OHSA”). Most importantly during this time the OHSA must be followed to its full extent to avoid claims by Employees and fines imposed on the Employer at a later stage. The OHSA states that an Employer must ensure that its working environment is safe and without risk to the health of its Employees.
In addition to following the rules and regulations of OHSA, we strongly recommend that Employers adopt contingency plans or alternative working arrangements for Employees by consulting with its Employees about the Virus and communicating with its Employees regarding the measures the Employer will put in place to secure the working environment against the infiltration of the Virus and its Employees becoming infected.
We recommend that these measures should include as little as possible physical contact with colleagues, clients, suppliers, contractors, customers, etcetera. Indeed, communication for various reasons between the aforementioned persons and the like for business needs and operations are of course required for most businesses to remain economically viable. However, we recommend that instead of physical consultation and communication; consultations and communication by way of conference call, internet or mobile telephone facilities should be implemented instead as a preventative measure until further notice. Further preventative measures in terms of health and safety in the workplace or working environment and in alignment with the OHSA legislation requirements in the case of the Virus include supplying your Employees with hand sanitizer and other hygiene equipment as well as implementing rules for sanitation throughout the working day within the working environment and notably informing and educating your Employees with reading material on preventative measures and treatment. Simply implementing a no handshake or physical contact policy as an interim preventative measure can save lives during this time.
Contracting the Virus and Sick Leave
If an Employee complains of symptoms of the Virus, he or she must be instructed to vacate the working environment immediately and attend a doctor to be examined. According to the WHO, symptoms include respiratory infections, fever, cough, shortness of breath and breathing difficulties and in more severe cases, the infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death. That said, we have received queries from Employers regarding Employees abusing sick leave during this period and taking advantage of the panic. Therefore, sick leave rules as per the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) indeed still applies. The Employee must produce a medical certificate as per the BCEA rules and can send a copy thereof via email or their mobile phones to the Employer to keep in line with limited to no physical contact. If an Employee indeed contracts the Virus, then during the period the Employee is off sick and if he or she has not exhausted his or her sick leave benefits as per the BCEA, he or she is still entitled to receive his or her normal and full remuneration and benefits.
Short Term Alternative Working Arrangements
Other preventative measures the Employer can consider is allowing their Employees to work from home if this is a viable option for the business. However, Employers must note that if they are instructing their Employees to work from home then their Employees are still entitled to their full remuneration and benefits as if they were working in the office or on-site as per the norm. On the contrary, if an Employee is in a state of panic and is refusing to attend at work for fear of contracting the Virus and they have not been granted permission to work from home, the Employer should consult with the Employee via mobile or conference call and hear the Employee’s concerns prior to making rash decisions to dismiss the Employee for AWOL (absence without leave). The Employer, in these circumstances and to avoid unfair dismissal disputes at a later stage, could offer unpaid leave, annual leave or agree to remote working conditions on a case by case basis.
In addition to the above, we recommend following the WHO recommendations for the workplace with immediate effect. These recommendations can be found online HERE.
Fadia Arnold is currently a Senior Associate Attorney at SchoemanLaw Incorporated in Cape Town