INTRODUCTION
Due to the rapidly increasing rate of infection of the coronavirus (COVID – 19) globally and within South Africa, employers across the country are faced with various health and safety implications in the workplace.
This article aims to address certain issues and concerns that both employers and employees may have arising from COVID-19.
What is COVID -19?
According to the World Health Organization (“WHO”), coronaviruses are a large group of viruses that cause a wide range of illnesses, from less severe illnesses (i.e. the common cold) to severe illnesses (i.e. Middle East Respiratory Syndrome and Severe Acute Respiratory Syndrome known as MERS and SARS respectively). COVID–19 is a new strain of the virus which was previously not identified in humans.
According to the WHO, the first case of the COVID-19 was reported in Wuhan, China, on 31 December 2019. As at 19 March 2020, the number of reported cases of COVID-19 has increased astronomically to 209 839 cases globally (according to the WHO Situation Report – 59).
Bringing the issue closer to home, as at 18 March 2020, the National Institute for Communicable Disease (“NICD”) confirmed that the number of patients to test positive for COVID-19 in South Africa was 150 cases.
Symptoms and Prevention (as published by the WHO)
Common signs of infection include: respiratory symptoms, fever, cough, shortness of breath and breathing difficulties. In more severe cases, and where the infection goes untreated, the virus may cause pneumonia, severe acute respiratory syndrome, kidney failure and death.
The WHO standard recommendations to prevent infection spread include:
- regular hand washing;
- covering mouth and nose when coughing and sneezing;
- thoroughly cooking meat and eggs; and
- avoiding close contact with anyone showing symptoms of respiratory illness such as coughing and sneezing.
Which South African employment laws are relevant to the COVID-19 outbreak?
The two most relevant legislative acts are the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”) and the Basic Conditions of Employment Act, No. 75 of 1997 (“BCEA”). We briefly consider the relevant provisions of these acts below.
1 OHSA
The general duties of the employer to the employee[1] in terms of the OHSA (read with the Hazardous Biological Agents Regulations) places an obligation on employers to provide and maintain a working environment which is safe and without risk to the health of the employees, as far as is reasonably possible. This obligation includes, amongst others:
- taking steps as may be reasonably feasible to eliminate/ mitigate any hazard[2] or potential hazard to the safety or health of employees, before resorting to personal protective equipment;
- 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 its employees; and
- enforcing such measures as may be necessary in the interest of health and safety.
The general duties of employees at work include, amongst others:
- taking reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions [we will deal with this in more detail hereinunder];
- as regards any duty or requirement imposed on his employer or any other person by the OHSA, co-operating with such employer or person to enable that duty or requirement to be performed or complied with;
- carrying out any lawful order given to him, and obeying the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety; and
- if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable, reporting such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer.
2 BCEA
The BCEA regulates the conditions of employment of employees. Considering the COVID-19 pandemic, the following provisions of the BCEA will be of utmost importance to employers.
Working Time
The regulation of working time of each employee must be: –
- in accordance with the provisions of the OHSA;
- with due regard to the health and safety of the employees;
- with due regard to the Code of Good Practice on the regulation of working time;[4] and
- with due regard to the family responsibilities of the employees.
Employees’ working time may also be governed by sectoral determinations and the employees’ contracts of employment.
Sick Leave
In terms of the BCEA, an employee is entitled to 30 days paid sick leave per sick leave cycle (which is a period of 36 months from the commencement of employment with the same employer or 36 months from the completion of the employee’s prior sick leave cycle).
Upon request by the employer, an employee is required to produce a medical certificate by a medical practitioner if the employee is absent from work for more than 2 consecutive days or on more than two occasions during an 8-week period.
Should an employee be infected with COVID-19 and be incapacitated, the employee is required to provide the employer with a medical certificate from a registered medical practitioner stating the employee was unable (or, presumably not allowed) to work for the duration of the employee’s absence, on account of unique sickness.
What about forced annual leave, sick leave or work from home (“WFM”)?
Annual leave is regulated by the BCEA and, as a general rule, is at a time determined by the employer. For instance, employers may elect to close the business for a specific period, during which time the employee may be obliged to use annual leave.
As mentioned, sick leave is also regulated by the BCEA. Importantly, if an employee is able to obtain a medical certificate from a registered medical practitioner, then the employee will be entitled to sick leave and the employer is obliged to grant same (subject to the maximum number of days afforded by the BCEA).
In the circumstances surrounding the COVID–19 outbreak, different situations may arise. Broadly speaking, leave requirements may arise where: 1) the employee self-quarantines due to suspected infection; and/or 2) the employer forces mandatory leave to protect its business and/or the health and safety of other employees. We consider these two situations briefly below.
The employee self-quarantines due to suspected infection
If the employee suspects infection, the employer may allow the employee to WFM if this is possible, given the employee’s responsibilities. However, depending on the circumstances, given that the request for self-isolation is at the employee’s instance, the employee may be obliged to take annual leave. Alternatively, the employee may take unpaid leave for the period of the quarantine, subject to agreement with the employer. The employer may, at its discretion, elect to grant the employee paid time off work or may allow the employee to use sick leave without the need to produce a medical certificate.
The Employer forces mandatory leave to protect its business
Depending on the employer’s leave policy, it may impose annual leave on employees suspected of being infected. Such measures are clearly drastic and should not be undertaken lightly. It is preferable that the employer first assesses whether the employee may WFM, to avoid the employee having to take annual leave. Alternatively, the employer may, at its discretion, allow the employee to use sick leave without the need to produce a medical certificate.
Regardless of which of the above two situations transpire, it is recommended that the employer implements relevant policies which are applied fairly and uniformly across the business.
If the employer elects to allow the employee to WFM, the employees are still obliged to adhere to the employer’s ordinary polices and rules.
Is Mandatory Testing for COVID-19 allowed?
An employee may not be obliged to undergo mandatory testing without prior consent. Notwithstanding, in terms of the OHSA, an employer has an obligation to take steps to eliminate or mitigate any hazard or potential hazard to the safety or health of employees. As a measure to mitigate the risk of the spread of COVID-19, employers may elect to implement a COVID-19 policy which may provide for, amongst others, mandatory testing.
For instance, mandatory testing may be required where an employee:
- has travelled to a designated high-risk country; or
- has come into contact with a person who has travelled to a high-risk country or a person who has tested positive for COVID-19; or
- has undergone self-quarantine; or
- is experiencing symptoms of suspected COVID-19.
In the above instances, mandatory testing may be required by the employer, in terms of the relevant policy, before the employee may be permitted to return to work.
Importantly, any COVID-19 policy would need to be reasonable, fair and applied uniformly to all employees, whilst accounting for national interests in mitigating the harms of the forthcoming COVID-19 pandemic.
What Measures should be implemented by Employers?
In light of the above, employers are obliged to act fairly and in accordance with their own polices. It is therefore recommended that employers implement a COVID-19 policy which deals with, amongst others, prevention, hygiene, leave, travel and testing. Possible aspects of a COVID-19 policy are, amongst others:
- risk assessment (the employer should make provision for risk assessment of each employee);
- preventative measures such as sanitisers and soaps, face masks, gloves (where necessary) which preventative measures may include the use of thermal scanners in cases where employees report experiencing any of the symptoms and believe there is a possibility that they may have contracted COVID-19;
- methods to reduce risk of transmission;
- mandatory testing for COVID-19;
- policy regarding travel (both local and international); and
- travel guidelines (where employees wish to travel for leisure and the use of annual leave for quarantine upon their return).
The above aspects may vary from business to business and industry to industry.
What has the South African government done to date?
On 15 March 2020, the President implemented travel bans on foreign nationals from high-risk countries (currently Italy, Iran, South Korea, Spain, Germany, USA, UK and China) as from today, 18 March 2020. VISAs have also been cancelled to visitors from those countries. In addition, a national state of disaster has been declared in terms of the Disaster Management Act, 2002.
South African citizens returning from the aforementioned high-risk countries will be subjected to testing and self-isolation or quarantine on entry. Travellers from medium-risk countries – such as Portugal, Hong Kong and Singapore – will be required to undergo high intensity screening. In additional, gatherings of more than 100 people are banned.
On 17 March 2020, the Department of Employment and Labour (the “Department”) published COVID-19 Guidelines founded on traditional infection prevention and occupational hygiene practices. The COVID-19 Guidelines focuses on the need for employers to implement the following: –
- Engineering controls – isolating employees from work-related hazards, installing high-efficiency air filtration, increasing ventilation rates in the work environment and installing physical barriers;
- Administrative controls – encouraging sick employees to stay at home; minimizing contact by replacing face-to-face meetings with virtual communications and minimising the number of employees on site at any given time e.g. rotation or shift work, etc;
- Safe Work Practices – provide resources and a work environment that promotes personal hygiene; and
- Personal Protective Equipment (PPE) – employers should check the NICD website regularly for updates about recommended PPE.
Save for the above COVID-19 Guidelines, at this stage, there has been no further official intervention by government in so far as employment matters are concerned.
Conclusion
The COVID-19 pandemic holds significant implications for both employers and employees. Each and every business is unique and a solution which works for one business may not work for another. For this reason, it is important that Employers create a specialised COVID-19 policy which would be suitable for the business and would include, as a minimum, the measures listed herein. We urge employers to seek the assistance of legal practitioners to draft the relevant polices. Schindlers avails itself to assist in this regard.
Please note: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case by case basis and you should consult an attorney before taking any action contemplated herein.
