Article by P Assenmacher from Paradigm Corporate Services
The purpose of this article is to provide practical guidance to employers as well as answers to legal questions and considerations which may arise with application to the workplace in the wake of the COVID-19 pandemic.
Hereunder follow abridged points on a number of aspects and questions which may typically manifest in the workplace consequent to COVID-19. The statements and views expressed hereunder must not be construed as definitive legal advice, but rather as guiding principles to consider, and more specifically, that each and every case must be considered on its own facts and merits relevant to the particular workplace, and legal advice must accordingly be obtained.
It is of particular importance that employers and employees must keep abreast of Governmental announcements which are made from time to time arising from the national state of disaster declared by President Ramaphosa on 15 March 2020, which state of affairs is governed by the provisions of the Disaster Management Act, No. 57 of 2002 (the “Act”). In terms of the Act Government is obliged to consult with specific stipulated stakeholders. Section 25 of the Act requires the preparation of a disaster management plan. A national state of disaster lapses three months after it has been declared, and can be extended as provided for in the Act.
The Act provides for a National Disaster Fund and a Central Contingency Fund. In addition, other fiscal relief measures can be implemented by Government. In his State Address on 15 March 2020 President Ramaphosa stated that the Cabinet will finalise a comprehensive package of interventions to mitigate the expected impact of COVID-19 on the economy, which will consist of various fiscal and other measures to be concluded following consultation with business, labour and other relevant institutions.
On 19 March 2020, it was promulgated by Government Gazette that all on-consumption premises selling liquor, including taverns, restaurants and clubs must be closed with immediate effect or must accommodate no more than 50 people at any time. The particular regulations dictate that all on-consumption premises selling liquor must be closed between 18h00 and 09h00 on weekdays and Saturdays and from 13h00 on Sundays and public holidays.
It was also announced that a number of interventions and measures will be announced on Friday, 20 March 2020. It is anticipated that part of such announcements will include amendments/extensions to UIF benefits to employees and UIF contributions relief for employers.
On 17 March 2020 the Minister of Employment and Labour released an official media statement stating that in order to assist distressed companies, a period of reprieve will be considered in order for companies not to contribute to UIF, and that a Temporary Employer / Employee Relief Scheme Fund will be established to assist in employees not being laid off. In instances where companies decide to close for a short period as a precautionary measure, the short term UIF benefit will activate. If companies contemplate a short term shutdown, such companies are required to inform the UIF, consequent to which its team members will visit such companies to provide assistance with the processing of claims.
In the case where an employee is to be self-quarantined for 14 days, such leave will be recognised as special leave, which will be fully paid on condition that the reason for the quarantine meets the requirements and such employee can apply for UIF benefits. In the event that an employee is required to be quarantined in extent of 14 days as a result of having travelled or having been in contact with an infected person, such leave will be recognised as special leave and the employee will be eligible to apply for unemployment insurance benefits.
The Minister urged employers to conduct a health and safety risk assessment in consultation with employees, whilst ensuring that measures are put in place to ensure a healthy workplace for employees as required by law.
At the time of the publication of this article, an announcement is also awaited from the Reserve Bank on a possible reduction of the repo rate.
- Employees are not per se entitled to sick leave. There is nothing in employment legislation to compel an employer to pay an employee for a period of precautionary quarantine. An employee is only entitled to sick leave as prescribed by the Basic Conditions of Employment Act, No. 75 of 1997 (“BCEA”), which requires a valid medical certificate if the employee is absent on sick leave for more than two consecutive days, or on more than two occasions during an eight week period. The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council.
- Employees cannot use the existence of COVID-19 as an excuse to stay away from work on a whim. All employees remain obliged to report for duty, unless otherwise instructed by their employers.
- An employee who refuses to report for duty has to provide a valid reason, and the mere presence of COVID-19 in South Africa is not a valid reason. Absence from work for precautionary measures does not constitute sick leave. An employee is only entitled to sick leave if the employee is unfit to work, which fact should ideally be certified by a medical practitioner in a medical certificate.
- Employees who stay away from work without a valid reason may face disciplinary action. Employees should communicate with their employers about their concerns before making a decision to stay at home, without authorisation.
- An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. Employees must also bear in mind that if an employee’s sick leave entitlement is exhausted as a result of one bout of flu in a given year, any sick leave thereafter for the duration of the 36 month sick leave cycle period of the employee will be unpaid.
- Employees may be allowed by employers to take authorised unpaid sick leave and claim illness benefits in terms of the Unemployment Insurance Act, No. 63 of 2001 (“UIA”). In terms of section 20 of the UIA a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness. Employers must investigate this option and advise employees thereof, which option may be available to employees after their sick leave has been exhausted.
- Retrenchment is occasioned by the operational requirements of an employer due to economic, technological, structural or similar needs of the employer.
- Retrenchment is classified as a form of dismissal of no fault on the part of the employee. As such, it is not an opportunity for an employer to terminate the employment of ill employees. At this early point in time, it is unlikely, but not impossible in particular cases, for COVID-19 to trigger an operational need. The recommended period for recovery/isolation is 14 days, which in itself reasonably considered would not trigger a need to retrench. However, a prolonged duration of the attempted containment of COVID-19 and the downturn/cessation of business activities during such period may create such a need to arise in the future.
- Employees do not have a right to work from home. Working from home may be considered by employers but should not be decided upon by employees without the employer’s consent. Dependent on facts and circumstances, if it is reasonably deemed that a workplace is unsafe, arising from an employer’s common law duties and statutory duties in terms of the Occupational Health and Safety Act, an employer may have no option but to consider to send employees home.
- Working from home may be permitted in the discretion of the employer. This is not always viable but could be considered in a corporate environment. Should employers consider this option, it is recommended that clear guidelines be set for employees. This may include that the working environment must be safe, and the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.
- Employers do not have the right to dictate whether an employee may travel during his/her annual leave or weekends. Employers may however require employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers.
- Employers should take into consideration the effect on affected employees to be sent home and attempt to implement ways to reduce any negative consequences where possible, and how it will impact on remuneration and benefits. Employers should consult with employees before the decision is made to work from home, and it must be attempted to reach an agreement on the remuneration, if any, which is to be paid to such employees in such a case.
- Employers and employees must both be mindful of maintaining a good working relationship during and post COVID-19, and their actions during the management of COVID-19 may have a marked impact on such relationship in the future. An attempt must be made to strike a balance in respect of the interests of employers and employees.
- The Employment Equity Act, No. 55 of 1998 prohibits medical testing as a rule, but allows certain exceptions where testing is permissible. Medical testing in light of medical facts such as an outbreak of COVID-19 would be one of such cases. This means employers could justifiably require the medical testing of employees during the COVID-19 pandemic, thereby reducing the risk to the individual employee and all other employees in the workplace.
- Suggested action plan if employees are required for economic and/or health reasons to not remain at work:
- Any actions taken by an employer must be preceded by a consultation process. This is an imperative compliance aspect in order to ensure procedural fairness. The necessity to consult stems from the possibility that steps which the employer may wish to implement will have the effect of a change to the terms and conditions of employment of employees. In the consultation process the employer is required to make full disclosure of the relevant facts and circumstances and contemplated steps the employer intends to take, and employees must be provided with the opportunity to consider such submissions by the employer and be allowed to make their own submissions for the employer to consider, and to possibly suggest alternatives to the intended steps by the employer;
- Employers should consider steps which can be considered to mitigate the potential financial adverse affect on employees occasioned by having to not attend work. Examples which could be considered to mitigate the adverse financial affect on employees could be for employees to be paid for accumulated overtime and work on public holidays and Sundays. Following the above, or in the absence of any accumulated overtime or work on public holidays and Sundays, employees could then be requested to take paid annual leave. The aforesaid steps could ameliorate the financial plight of employees to still receive some form of compensation whilst not working, and at the same time will reduce the contingent liability of employers related to overtime, work on Sundays and public holidays, annual leave etc.;
- It is important to note that employees cannot be instructed to take annual leave. This prohibition is derived from section 20 of the BCEA dealing with annual leave, which section does not allow an employer to instruct an employee to take annual leave. Section 20(6) stipulates that an employer must permit an employee, at the employee’s request, to take leave during a period of unpaid leave. Thus, if the employee does not make such a request, or does not consent to a request by the employer for the employee to agree to take annual leave as would be in the context of COVID-19, an employer cannot force an employee to take annual leave. However, an employer, given particular facts and circumstances, may be able to raise force majeure/supervening impossibility and suspend the employment of the employee without pay for the duration of Covid-19 preventing the employer to have its employees return to work.
- It is strongly recommended that in such an instance that the employer follows proper due process by convening a meeting with the particular employee/s with the purpose to consider the possible suspension of the employee/s’ employment, and in such meeting provide the employee with the opportunity to make submissions as to why the employee’s employment should not be suspended, and more particularly, to make submissions as to why it should not be without remuneration. Following such meeting, the employer can then decide on its course of action to follow dependent on what emanated from the meeting, which may include to have employees remain at home without pay. By following this process the employer mitigates its risk against employment disputes declared against it by its employees, both from a procedural and substantive fairness perspective, in the context of either unfair labour practice disputes, or employees resigning as a consequence of the steps taken by the employers and claiming constructive dismissal;