Employers: rights and responsibilities in the workplace during COVID-19
According to the World Health Organisation, “Coronaviruses are a large family of viruses which may cause illness in animals or humans. In humans, several coronaviruses are known to cause respiratory infections ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS).”
Social distancing is a preventative measure being implemented globally, as no cure has been found for Coronavirus yet. However, this leaves many employers and employees in limbo between their health and safety and their careers or businesses.
Is it unethical and negligent to insist all employees come into the office if they do not have a medical certificate from a medical practitioner confirming the infection? Is it an overly cautious and unnecessary risk for your company’s success to make all employees work from home? Do you have a right to ask to work remotely, and if so, what are the requirements and process?
Luckily all these answers are spread across South African legislation. It must be noted, however, that because this is a first-time detectable human virus, labour laws are not absolute and can be relaxed upon agreement between employer and employee. Additionally, indulgences may be granted, and contractual obligations waived to ensure the virus does not affect the employee’s income and revenue.
Nevertheless, employers must abide by the Occupational Health and Safety Act 85 of 1993 section 8, which states,
“8. General duties of employers to their employees
8.1. Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”
8.2. Without derogating from the generality of an employer’s duties under subsection (1), the matters to which those duties refer to in particular;
a) the provision and maintenance of systems of work, plant, and machinery that, as far as is reasonably practicable, are safe and without risks to health
b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment
c) making arrangements for ensuring, as far as reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;
d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures
e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;
f)) as far as is reasonable practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken;
g) taking all necessary measures to ensure that tire requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;
h) enforcing such measures as may be necessary in the interest of health and safety;
i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who has the authority to ensure precautionary measures taken by the employer are implemented; and
j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37 (1) (b).”
Basically, the employer is expected to implement all measures to ensure the health and safety of its employees. Now comes the question, “what if the employee does not have a certificate?” If you are not implementing temporary remote working for all employees, then the sick leave regulations in Basic Conditions of Employment Act 75 of 1997 section 22 will apply or the contractual regulations agreed upon commencement of employment. The BCEA states,
“22. Sick leave
In this Chapter, ‘‘sick leave cycle’’ means the period of 36 months’ employment with the same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.
(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).
(5) Subject to section 23, an employer must pay an employee for a day’s sick leave— (a) the wage the employee would ordinarily have received for work on that day; and (b) on the employee’s usual payday.
(6) An agreement may reduce the pay to which an employee is entitled in respect of any day’s absence in terms of this section if—
(a) the number of days of paid sick leave is increased at least commensurately with any reduction in the daily amount of sick pay, and
(b) the employee’s entitlement to pay—
(i) for any day’s sick leave is at least 75 percent of the wage payable to the employee for the ordinary hours the employee would have worked on that day; and
(ii) for sick leave over the sick leave cycle is at least equivalent to the employee’s entitlement in terms of subsection (2).”
Additionally, should an employee go to the employer and complain about symptoms of the virus, the employer has to send the employee for a medical examination. The employer has to implement sanitation measures throughout the working day, as well as inform and educate employees about the Coronavirus and all information on it.
COVID-19 is incredibly contagious and can potentially affect most of your team to the point of inability to produce work of usual standard, if at all. Thus, in these decisions, you must consider the effect of keeping an infected person in the workplace. Remote working has been proven to be more productive than in-office working; it is merely up to the contingency plan and software you have in place to monitor this.
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