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The Coronavirus and the effect thereof in the workplace

Article by Herklaas Oberholster (Legal Advisor in Labour Department Seesa)

Now and again, a pandemic takes the world by storm. From the “Spanish Flu”, the 1918 influenza epidemic to the more recent swine flu outbreak of 2009. Each brought with it its hysteria and pandemonium. The present-day cause of great concern and panic that has taken over the world at large and remains a hot topic on everyone’s lips is the COVID-19 disease, more commonly referred to as the Coronavirus. 

The purpose of this article is not to deal with the medical aspects of the virus that received wide coverage in the media but to highlight the effect that the outbreak could have in the workplace. SEESA Labour has been  overloaded with queries on this topic and amongst others, the following questions have been posed:

  1. If I were to close my business due to an outbreak, should I still pay my employees?
  2. I do not want to leave my employees high and dry without income, can they claim from UIF?
  3. If an employee is quarantined, should I regard this as sick leave?
  4. What happens if the city is placed under quarantine? What does our Labour Law provide for?
  5. My employee recently travelled to China for work. What should I do upon his return? 

No clear guidelines and/or procedures have yet been proclaimed by the South African Government to specifically address an employer’s obligations in the event of the pandemic materialising in South Africa.  SEESA Labour will address the posed questions by applying the workings of current relevant legislation. 

Should there be an instruction for all schools or businesses to close, must an employer still pay its employees?

The supporting legislation the government and law enforcement would most probably rely on to shut down schools and businesses would be the National Health Act and National Plague Control Guidelines. Such an instruction would thus be through the working of Law and no fault of the employer and/or the employee. In our view, the employer would be entitled to implement a system of lay-off during which time the employee would be required to stay at home and will not be entitled to any remuneration. An alternative option that the employer or employee could consider, is for the employee to take annual leave during this time or implementing a system of working from home if the employer’s business is geared for this type of operation. This will then, of course, be with pay.

Will an employee be able to claim from the Unemployment Insurance Fund (UIF) for such closure?

Under the option of “reduction of working hours,” the employee can attempt to claim from UIF. This is however not a guaranteed payment, which will always be at the discretion of the Department of Labour. Our SEESA UIF Department will assist employers and employees with such claims if they are affected by a system of lay-off.

If a person is quarantined must one still pay them and for how long?

In the unfortunate event of an employee presenting symptoms consistent with the Coronavirus, the employee should immediately seek medical attention. Upon confirmed diagnosis, the employee will most probably be placed under a period of quarantine.  South Africa is currently following a 21 day quarantine period.  During this time the employee will be unfit to render his/her services and the principles of sick leave will apply. If the employee’s sick leave entitlement, usually 30 days in a three-year sick leave cycle, has been exhausted, there is no obligation on the employer to remunerate the employee for any additional days taken.

Should a city be placed under quarantine, what does the Labour Law provide for?

Quarantining a city does not necessarily mean that the employees or the residents are infected by the Coronavirus. It is merely done for safety reasons and to prevent the further spread of the virus. No evidence here suggests that the employee is unfit to render his/her services in which regards the same principle of lay-off should be followed.

How should I deal with a situation where an employee recently travelled to a corona-infected area and they have returned?

Where an employee travels internationally, be it for work or leisure, and happens to travel to a corona-infected area, or presents symptoms of the virus upon his return, the situation will be dealt with differently than to what is set out above. If you are faced with such a situation we encourage you to contact SEESA Labour to enable us to specifically guide you on the avenue to pursue.  

As mentioned above, no clear guidelines have been put into place in South Africa to deal with the situation.  Employers are advised to closely monitor employees and to immediately request any employee displaying Coronavirus symptoms to seek medical attention. Since the virus spreads mainly through respiratory droplets that launch into the air when an infected person coughs or sneezes, all employees must be made aware that they should practice every day preventative behaviour:  Stay at home when sick, cover coughs and sneezes, frequently wash hands with soap and water, and thoroughly clean frequently touched surfaces.

Keep in mind that the above advice is our understanding without any guidelines from the Department of Health and Labour.  Only further development in this arena will provide more clarity on dealing with this situation. 

Should you require any further assistance with the matter in question and/or require any other labour-related advice please contact your Legal Advisor at SEESA Labour. 

About the author

Herklas Oberholster is an admitted attorney who obtained his BCom Law and LLB degree at the University of Pretoria. He is currently working at SEESA as a Legal Advisor in our Labour Department. 

Seesa is a proud Partner of the NSBC