Now that the World Health Organisation has declared the Coronavirus (COVID-19) outbreak a pandemic and the President has declared it a national disaster, employers are under increased pressure to take action: What precautionary measures should be taken, what forms of leave apply, how must employees be accommodated, quarantine, how does one deal with a slowdown in business, etc?
Although the situation may change from day to day, the following points are currently the most salient.
Occupational Health and Safety
Employers have an obligation to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees - Section 8 of the Occupational Health and Safety Act of 1993 (OHSA)). See further discussion below on risk mitigation.
The main reason for taking leave in relation to COVID-19 would be as a precautionary measure – either self-imposed isolation (quarantine) by an employee, or forced leave imposed by an employer in order to limit the risk of infection in the workplace. This form of ‘special leave’ is not regulated by law. So how does it work? [See postscript below*]
Not sick leave
An employee is only entitled to paid sick leave if he or she is too ill to work. So, unless the employee has been booked off due to illness, he or she is not entitled to paid sick leave.
When must the employer pay?
Where employers deny employees access to the workplace due to the perceived risk of infection of others (forced leave imposed by an employer in order to limit the risk of infection in the workplace), e.g. where an employee has travelled abroad privately or might have had contact with others who have contracted the virus. The employer would normally be obliged to pay the employee’s wages - an employee is entitled to pay for tendering his or her services, not for actually working or being present at the workplace.
But having to pay employees might not always seem fair, particularly if employees have recklessly or negligently exposed themselves to the virus by, for example, travelling to a region where the infection rate is high. Fortunately, as explained below, the employer can introduce measures to deal with such situations.
When will leave be unpaid?
Company policy: Employers may implement rules and policies that are reasonable to manage the risk of infection. A policy may, for example, provide that if an employee travels abroad for private purposes, the employer may deny the employee access to the workplace for a certain period after their return to South Africa and that such absence will be treated as unpaid leave, or as annual leave (unless the employee travelled for business purposes at the insistence of the employer). As the disease spreads and the risk increases, the employer may introduce additional rules and policies that are reasonable in the circumstances.
Government intervention: The obligation to pay may further be affected by social regulations introduced by government, such as the imposition of restrictions on the number of employees in the workplace (See further discussion below under Risk mitigation).
Self-imposed quarantine: Employees in self-imposed quarantine are not automatically entitled to be paid for the period of absence. The parties could, of course, come to a different agreement on an arrangement that is fair in the circumstances, e.g. that the employer pays in full or in part, or that time away from work be taken as annual leave. [See postscript below*]
Working from home
Where there are good reasons for denying an employee access to the workplace, the nature of the work might be such that the employees are able to work from home. Employers and employees should consider entering into arrangements that are sensible in the circumstances. Working from home will count as ordinary working time.
Returning to work
Where there is a risk of a person being a carrier of the virus due to possible exposure, a period of isolation (quarantine) for 2 weeks is currently considered to be adequate. Where it is important for an employee to return to work sooner, or in cases of doubt, it would be reasonable for an employer to require the employee to be tested and to provide the employer with a medical certificate by a medical practitioner confirming that it is safe for the employee to return to work. This would have to be dealt with on a case by case basis.
Impact on business
Employers whose businesses are likely to be severely impacted by the spread of COVID-19, e.g. the travel and hospitality industries, may be thinking of retrenching some of their staff. However, one needs to bear in mind that, although nobody knows for how long the COVID-19 crisis will prevail, it will almost certainly be temporary.
It would therefore be advisable to seek alternatives to retrenchment, such as for employees to work short time or to be laid off temporarily without pay. Employers should be proactive in engaging with their staff in this regard. If the contract of employment does not provide for short time or lay-off, the employer cannot impose these measures unilaterally – it will have to be agreed. If no agreement is reached, employers may have to follow the retrenchment process as a last resort. Contact email@example.com for assistance with short time or lay-off agreements.
What measures should an employer implement in order to comply with its obligations in terms of the OHSA? The answer depends on a wide range of circumstances, e.g. nature and location of the business, number of employees, type of work, interaction between employees and clients, movement of people and goods, the prevalence of infection at a given time and government intervention.
There are some obvious measures that employers should implement with immediate effect, such as promoting good hygiene and keeping employees informed on developments related to COVID-19.
The President announced on 15 March 2020 that “gatherings of more than 100 people will be prohibited”. This statement was made in the context of social and community gatherings and it is not clear to what extent it applies to the workplace. In our view employers should, as far as possible, take this into account when introducing measures to mitigate the risk in the workplace in terms the OHSA.
The Department of Health has launched a website with useful information – see www.sacoronavirus.co.za
Be sceptical of social media hype and seek the guidance of properly qualified health practitioners on the appropriate measures to be implemented as matters progress.
Don’t panic, be informed, be prepared, be sensible!
Jan Truter for www.labourwise.co.za
*PS. Since the publication of this article, the DoL has created a special dispensation whereby the a 14-day quarantine period be regarded as “special leave” which can be claimed from the UIF under the category of Illness benefits – see further information at https://www.labourwise.co.za/downloads/topical-temporary-download.
Disclaimer: The material above is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts responsibility for any loss or damage that may arise from reliance on information contained in this article.