WORKPLACE MEASURES TO DEAL WITH CORONAVIRUS

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GENERAL REMARKS

On 15 March 2020, the South African government declared a national state of disaster and implemented various measures designed to contain and minimise the spread of the virus. None of these measures directly affect the workplace, as there is an obvious necessity to keep the economy going as far as possible, but the general measures will have an impact on employees, such as the inability to access public transport to get to work, and the ban on gatherings of more than 100 people, which should (strictly speaking) apply to any kind of large scale working environment as well.

At least 61 confirmed cases of coronavirus (Covid-19) infection has been reported in South Africa and the likelihood is that more cases will surface in the near future.

One of the most important aspects of dealing with coronavirus in the workplace is to keep employees informed of the risk, measures in place to combat it, and the consequences of infection. Employers should ensure that misinformation is not spread amongst the workforce potentially causing unfounded and unnecessary panic and should decisive and appropriate measures to deal with the issue.

Coronavirus is spread when infected persons cough or sneeze and when people have close contact. In many countries, especially those with substantial cases of infection, the governments’ discourage or prohibit large gatherings at public venues. In Italy, for example, football matches have been played in empty stadiums, and the top league has now been suspended; in Japan, a marathon was run with only the top 300 competitors and no crowds; and a recent F1 race was handled in the same wat. In Italy, the government has placed the entire northern part of the country in quarantine. In general, business travel has been severely curtailed or suspended.

This is how serious the threat of the spread of coronavirus is regarded.

In South Africa, as elsewhere, it’s vital that employers and employees cooperate to protect and promote their health and safety.

EMPLOYERS’ RESPONSIBILITY FOR SAFEGUARDING HEALTH IN THE WORKP{LACE

In terms of Section 8 of the Occupational Health and Safety Act, 1993 (OHSA employers must provide and maintain, as far as reasonably practicable, a safe working environment, without risks to the health of its employees.

Employers ought to eliminate or mitigate any danger, real or potential, must provide applicable and relevant information, instructions, training and supervision and must enforce measures that may be necessary to protect employees health and safety in the interests of health and safety.

Employers have this obligation regarding even non-employees affected by the employer’s activities.

Employers are prohibited from allowing a person to enter a workplace where their health and safety would be at risk.

This means that employers can impose workplace rules on their employees, and other parties, to deal with the coronavirus threat, for example, relating to access to business premises.

Employers may legitimately require the disclosure of recent international travel and subject persons to a virus test. However, the person’s consent is required for the test.

If the person refuses the test but shows other symptoms identified with the coronavirus, the employer can still take the appropriate measures it deems necessary in the circumstances.

Employers should ensure that the air in the workplace is safe and that air-conditioning will not spread infection and could provide appropriate protective equipment.

Further measures would be  sanitary facilities (with hot water), soap or a similar cleansing agent, and the maintenance of clean and hygienic workspaces

Employees must take reasonable care of their own and their colleagues’ health. Employees who don’t comply with their employer’s health and safety rules or who refuse to comply with applicable reasonable and lawful instructions, may face disciplinary action, and could be dismissed, if appropriate.

If employees become aware of an unsafe, or potentially unsafe, situation, they must report the matter to the employer. For example, if an employee suspects that a person entering the workplace shows the symptoms associated with coronavirus infection, this suspicion and the basis of it should be reported so that the employer can take appropriate steps.

Employers are obliged only to take  “reasonably practicable” measures.

The Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA) protects the employer from delictual liability regarding employees who become ill during the course and scope of their employment. Employees with occupational diseases can submit claims to the Compensation Fund.

If the employer was negligent regarding the occupational disease, the employee may receive increased compensation and the employer may be liable to contribute to the increased compensation in the form of increased assessment rates.

COIDA does not protect employers against claims by non-employees who contract a disease through interaction with employees. Such non-employees could institute civil claims based on delict.

Employers can safeguard employees in various ways, and one of the most common measures is to allow employees who ca work from home, to do so. Person-to-person meetings can be replicated by Skype calls. Many companies have already put a halt on all international, and even national, business travel by air. These are relatively easy precautionary steps to take but the real challenge will be to manage factory environments, or other workplaces where work must be performed on-site. The world economy is already facing a crisis of recession and if all economic activity is brought to a halt, disaster will follow.

ABSENCE OF EMPLOYEES FROM THE WORKPLACE

Employers are encouraged to allow their employees, wherever possible, to work from home and to equip them with the means to do so. Obviously, if employees render the services for which they are employed, they must be paid.

The real issues arise from the absence of employees who cannot work from home.

SICK LEAVE

When an employee falls ill, they’re entitled to statutory, paid sick leave of, most commonly, 30 days in a sick leave cycle of 36 months. Whether the employee contracts the coronavirus or some other illness, they are entitled to the paid sick leave and the employer is entitled to require an appropriate medical certificate before paying the employee during the absence.

If the employee’s paid sick leave entitlement is exhausted, they must take unpaid sick leave, unless there is some other arrangement with the employer, for example, that special paid leave is granted. If the sick period is unpaid, the employee can claim unemployment insurance benefits (UIF).

FORCED QUARANTINE / ISOLATION

If the employer has reasonable grounds to believe that an employee might be infected, the employer is entitled to require that employee to remain at home(for at least 14 days) and to undergo medical testing before returning to the workplace.

In this situation event, and unless the employee is “booked off” sick, this period of absence should be treated as special paid leave, rather than sick leave or annual leave, because the absence from work is on-demand from the employer.  If the employee works from home, the absence cannot be treated as leave as they are ere rendering contracted for services.

SELF-ISOLATION

If an employee chooses to self-isolate as a precautionary measure, but is not ill (and therefore can’t produce a medical certificate to justify paid sick leave), the employer and employee should agree on the basis of the absence. Strictly speaking, the employee must either take annual leave or unpaid leave because it’s their choice to stay away from work. If there is a reasonable apprehension of risk, employers should, wherever possible accommodate employees and grant some type of paid leave, even if just for 14 days, rather than follow a strict, no work no pay rule. Where the employee is not reasonably at risk and simply fears the consequences for coming to work, and cannot work from home, the leave should be unpaid unless the employee request annual leave.

CLOSURE OF BUSINESS

Businesses may be forced to close their doors, either because of widespread contagion because of the instruction public health authorities or because of the insistence of, for example, shopping mall owners.

In these circumstances, employers should investigate whether there are provisions for declaring short time in their industry or workplace, which would mean that there’s no obligation to pay employees during the period of closure.

In certain limited circumstances, one could try to rely on the impossibility of performance of the employment contact due to an ‘act of god’. However, this would be highly workplace-specific and should be preceded by detailed advice.

If the partial or temporary closure of a business results in financial disaster, employers should consider possible retrenchments, in terms of sections 189 or 189A of the Labour Relations Act 66 of 1995.

Neels van Rooyen
Labour Law Consultant
Hayes Incorporated

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