Coronavirus – Rights and obligations of employers and employees

03 Apr 2020

As coronavirus (CoVID-19) spreads in South Africa, employers and employees alike find themselves in unchartered territory.

Fortunately, most jurisdictions, including South Africa, have well established legal principles (including the common law and legislation) which can guide employers and employees in dealing with the virus and the impact it has / will have in the workplace.

This briefing note aims to provide clarity and guidance on some unprecedented issues facing South African organisations.

General Principles

In a time of relative uncertainty and increasing panic, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; abiding by State guidance and directives; and by acting fairly, responsibly and consistently.

South African employers should:

• Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); the Department of Health (“DOH”) and the National Institute of Communicable Diseases (“NICD”). Thus far, the guidance provided by the State has been at a fairly high level. We can expect to see more definitive guidance and directives provided by the State in the upcoming weeks.
• Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable employees (such as, those who are pregnant; those with impaired immunity; those aged over 60; and those on secondment or working away from home / travelling for work purposes);
• Inform their employees and, where relevant, recognised unions about their proposed measures to manage the health and safety of the workplace; and
• Update contact details for essential staff and management during this time.

1. Employer’s obligations – what does the law in South Africa say?

Employers have a legal duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees and anyone else who may be affected by the employer’s business, including customers, suppliers, visitors and members of the public.

Employers are required to undertake risk assessments regarding the risks to the health and safety of employees and anyone else who may be affected by the employer’s business. In doing so, employers must consider whether their existing arrangements for protecting employees and visitors take account of the risks arising from CoVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the State, or the WHO. This would include identifying the likelihood of employees contracting CoVID-19 whilst at work and appropriate measures to control that risk.

If an employer fails to implement appropriate measures, it may leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in danger.

2. Is it “business as usual”?

Insofar as employers are able to mitigate the risk of contamination of the workplace, and insofar as it is practically possible, employers should conduct their businesses as usual.

That said, unfortunately the reality is that many workplaces will not be able to conduct their businesses as usual and employers should consider implementing contingency plans to ensure as little disruption to their businesses as possible.

In addition to implementing contingency plans, which we discuss more fully below, employers are obliged to consider the directives imposed by government such as, for example, not permitting gatherings of more than 100 people. In the circumstances, employers will not be permitted to:

• host or require their employees to attend conferences, workshops, training etc. in which more than 100 people will be present;
• conduct townhall sessions with their employees, including consultations as envisaged by section 189 of the Labour Relations Act, should such sessions contemplate having 100 or more people present. That said, nothing prohibits employers from having consultations in smaller groups or through other means such as Skype for Business

3. What contingency planning steps should employers take?

• Effective planning is key to ensuring business continuity and the protection of employees. Employers could consider the following mechanisms to achieve this;
• Establish a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to employees;
• Devise an appropriate communications plan to keep employees fully informed, even when they are absent from work, together with provision of emergency contact details;
• Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention;
• Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to employees on key facts and risks;
• Consider alternatives to travel such as using videoconferencing or webinars;
• Identify and track employees who are abroad and consider appropriate measures to support them;
• Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations);
• Consider any measures necessary to sustain working from home;
• Review relevant policies (for example home working and sick leave) and agree changes to employee contracts to deliver flexibility, where possible;
• Consider how temporary shutdowns of premises might be managed;
• Review their insurance coverage;
• Consider their stance on requests to work flexibly and on self-isolation, quarantine and sick leave and ensure that it is reasonable, fair and applied consistently.

4. If an employer does nothing, can they be held liable?

An employer who does nothing could be said to be negligent and will be held liable. The Compensation for Occupational Injuries and Diseases Act (“COIDA”) protects employers from liability where employees contract an illness at work / during the course and scope of their employment. Such employees ordinarily claim from the Compensation Fund without having to prove the employer’s negligence.

However, where an employer has been negligent the employee may receive increased compensation and the cost of same may be for the employer’s account in the form of increased assessment rates.

The Minister of Labour has held that employees who contract the virus while performing their duties will have to be compensated. The practicalities of this and by whom such employees will be compensated is not yet clear. An immediate difficulty is how does one prove that an employee contracted the coronavirus during the course and scope of their employment? We assume that such compensation will have to be paid as outlined above, in terms of the current legislation in place.

COIDA only applies to employees. Others (customers / suppliers etc.), will have to institute a civil claim against employers if they seek to recover damages against them for negligence and usual delictual principles will apply in such instances.

Looking At Some Contingency Plans, Practically

5. Business travel – should travel be restricted?

Yes.

Business travel to high-risk areas should be restricted, unless absolutely necessary. Alternatives to business travel should be explored, where possible and appropriate. Such alternatives include having virtual meetings, postponing conferences etc.

In considering whether employees should still travel, employers should consider the purpose of the travel and whether there is an alternative; the latest government and international guidance; guidance from their occupational health advisor; and available measures to mitigate risk.

Where business travel is unavoidable, employers should implement contingency planning for the possibility of employees being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical insurance arrangements and whether they remain in force and are adequate.

Employers should also consider implementing health screening questionnaires for employees and visitors returning from abroad, before allowing them access to the workplace.

6. Reporting – Can an employer require employees to report suspected cases of the CoVID-19 relating to themselves or those they have come into contact with?

Yes.

CoVID19 is highly contagious and employers have a duty to maintain a safe workplace and to safeguard the health and safety of their employees. Questions of this nature have a legitimate purpose and may therefore be asked.

Please note, however, that under the Protection of Personal Information Act (“POPI”) (which is said to come into effect in April 2020), such information about an employee’s health counts as ‘special personal information’ which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Individual employment contracts may permit medical testing. A refusal to undergo a check when there are reasonable grounds for checking the employee’s health (for example, they appear ill or have been in a high-risk area) may result in that employee being excluded from the workplace.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

7. Are employers permitted to lay-off employees temporarily and, if so, under what circumstances?

Yes, if this is expressly provided for in the contract of employment.

If the contract of employment does not provide for this, or is silent on the issue, the employer may still do so provided that the employer first embarks upon a consultation process with the impacted employees pertaining to the employer’s operational requirements, which includes economic reasons.

The outcome of those consultations may result in agreed temporary time off without pay, or retrenchments. The employer will be required to justify its operational imperative to apply temporary or permanent layoffs. Retrenchments are usually intended to be permanent, but our law requires employers to consider those who have been retrenched in the past 6 months for re-employment, should any vacancies arise for which they have the requisite skills and experience. Such layoffs should be effected pursuant to a fair procedure being followed as prescribed in section 189 of the Labour Relations Act.

8. If temporary layoffs are permitted, for how long may employees be laid off?

There is no prescribed time periods within which temporary layoffs must be applied.

The prevailing circumstances and any agreement achieved with the impacted employees will dictate these time periods. Should the temporary layoffs become indefinite or endure for an unreasonably long period of time, the employer may elect to (permanently) retrench employees.

Alternatives to retrenchments include:

i) directing employees to work from home, if possible;

ii) directing employees to take annual leave; and

iii) offering any alternatives to retrenchment, such as, for example, a reduction in working hours and proportionate deduction in salary.

9. Flexible working – can an employer require employees to work flexibly?

Yes, employers can require employees to work flexibly. This includes asking employees to work from different locations, to work from home or to perform different duties.

Before requiring employees to work flexibly, employers should consider their employment contracts and whether they allow for flexible working. If so, employers can implement flexible working unilaterally. However, it is always best practice to consult with employees before exercising their rights to implement the changes. During such consultations, employers should listen if employees have personal reasons why they cannot work flexibly and take this into consideration when determining whether or not it will require such employees to work flexibly.

If the employment contracts do not make provision for flexible working and the employer needs employees to work outside the terms of their employment contracts, then it will have to agree the flexible arrangements with the individual employees, or with a recognised trade union if one (or more) is recognised in the workplace.

If the individual (or a trade union on their behalf) refuses to agree to these changes then, depending on the circumstances, it may be possible to impose them through a process of dismissal for operational requirements and engagement of employees who are willing to work flexibly, in accordance with the employer’s requirements. Those employees who would prefer to accept the proposed changes could elect to stay with the employer, as an alternative to their dismissal for operational requirements. The employer should take legal advice before proceeding to implement changes without the employee’s or a trade union’s agreement, and how it ought to go about doing so as it does carry with it legal risk.

In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

If the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their forced removal from the workplace lasts no longer than is necessary and they are provided with support.

10. Can employers require employees to use annual leave, sick leave or other leave to cover their absence from the workplace?

Yes.

If employees are unable to work because they are sick, they are entitled to paid sick leave (if they work 5 days per week: this is 30 days in a 3-year cycle). If an employee is not sick, he or she cannot be required to take sick leave. Employers can require proof of illness such as a medical certificate for the period the employee is booked off from work for sickness.

If employees are absent because they need to attend to a sick child, they are entitled to 3 days family responsibility leave per annum.

Employers can require employees to take annual leave, if they have a company shutdown, for example. In South Africa the annual entitlement to annual leave is a minimum of 15 working days per annum.

11. If employees cannot attend work because they are infected with CoVID-19, are they entitled to receive pay?

Employees who cannot work because they have been infected with CoVID-19 will be entitled to sick leave on full pay in the usual way.

In order to qualify for paid sick leave employers may require employees to provide it with a valid medical certificate in terms of which the employee has been booked off from work for the days on which they are absent. Medical practitioners are required to certify employees as being unable to perform any duties (even from home). Medical practitioners are required to divulge this level of detail in their medical certificates and where such information is absent, the employer should make enquiries with the doctor for clarity.

Once their sick leave has been exhausted, they will have to take unpaid leave, unless the employer is willing to provide additional sick leave, over above that which the legislation prescribes.

Regarding employees who are absent from work due to medically advised self-isolation or quarantine is more uncertain. Any exclusion period should be reasonable and no longer than is necessary to establish that the person is not infected with CoVID-19. In order to avoid employees being reluctant to self-isolate, where necessary, it is recommended that employers treat this absence as sick leave or agree for the time to be taken as annual leave, unless the employee is able to work from home in which case the time should not be docked as sick leave or annual leave.

12. In the event that the government direct that offices shutdown, are employers required to pay their employees?

No.

A distinction must be drawn between employees who can work from home and those who cannot. Those who can work from home should be required to continue working, albeit from home, in order for them remain eligible to receive their salaries.

Where employees cannot render service from home, the prohibition on them working is through no fault of theirs or of the employer. The prohibition of work would, therefore, constitute a force/vis majeure which, in our opinion, would temporarily suspend the obligations of the parties in terms of the contract of employment, i.e., the obligation to work and the obligation to pay. This aligns with the South African common law principle of “no work no pay”.

To ameliorate these adverse consequences, employers could consider forcing their employees to take annual leave during the period of government-forced shutdowns.

13. If an employer implements a shutdown of its own volition, must it continue to pay its own employees?

Where employers implement shutdowns of their own volition (i.e., not due to government-forced shutdowns) they must obviously continue to pay their employees who stay at home.

In this scenario, the employees, hypothetically speaking, would be willing and able to tender their services to the employer, but it would be the employer who prevents them from doing so. For this reason, the principle of “no work no pay” will not apply.

14. If there is a decreased requirement for employees due to the CoVID-19 outbreak, can employers require employees to take annual leave during a shutdown period?

Employers can designate the dates on which an employee takes annual leave, provided the appropriate notice is given.

15. Where can guidance from the South African government and international bodies be found and monitored?

The Department of Health’s website provides the latest official information on CoVID-19 in South Africa

http://www.health.gov.za/

The World Health Organization’s information on the CoVID-19 may be found here:

https://www.who.int/emergencies/diseases/novel-coronavirus-2019

16. If an employer has a business operation in an affected area, what additional steps should be taken?

Companies operating in affected areas should comply with local regulations and guidance from international bodies such as the WHO. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to employees and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

17. Is there any obligation on a private employer to report any cases or suspect cases of COVID-19 to the relevant local authorities?

At this stage there is no such requirement in South Africa. However, we will keep you updated should there be further developments and/or directives provided by the State.

The above does not constitute legal advice, but rather advice of general application which may change depending on the facts and circumstances of a particular case. Independent legal advice should be obtained before implementing any measure which may impact upon rights and obligations.

See also:

• #CORONAVIRUS (COVID-19) in SA – What are Employers’ obligations and Employees’ rights during this public health emergency?
• Coronavirus: Occupational Health and Safety Alert – South Africa

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)