BCHC: Guideline on employment issues relating to the corona virus

Introduction

1. This guideline deals with various employment related issues which have arisen as a result of the Corona Virus.
2. A national state of disaster has been declared by President Ramaphosa to enable the national executive to deal effectively with the current Corona Virus. A national state of disaster allows regulations or directives to be issued relating to a range of issues such as the release of available resources, evacuation to temporary shelters, regulation of traffic, regulation of movement of people and goods, dissemination of information, emergency procurement procedures and steps to facilitate international assistance etc.
3. In addition to complying with these regulations and directives, employers also have a duty to protect their employees in the workplace and it is therefore important for employers to know what these duties are and what measures can be implemented in order to comply with their duties during the current viral outbreak.
4. It is also important for employers to know what their options are given the effect that the Corona Virus will have on the economy.

An employer’s obligations and liability

5. The Occupational Health and Safety Act, 85 of 1993 (the OHSA) imposes a general duty on employers to provide a safe working environment as far as is reasonably practicable and in order to do so employers are required to identify the potential health and safety risks associated with their specific business.
6. It also places a duty on employees to cooperate with their employer’s instructions with regard to regulating a safe working environment and to take reasonable care for the health and safety of their fellow employees.
7. Employees also have a duty to report any unhealthy or unsafe situation which comes to their attention to their employer.
8. It is important for employers to reconsider their health and safety policies to determine whether they adequately identify the possible risks that the Corona Virus may have and the measures that are required to prevent or mitigate the hazards associated with the spread of the virus.
9. A properly conducted risk analysis has to be undertaken by each employer to determine which of the measures below should be utilised. This risk assessment should be based on the nature of the employer’s business.
10. The failure to engage in a risk assessment in businesses which may be prone to contact with Corona Virus carriers and to take measures to prevent or mitigate the hazard of exposing workers to the virus will constitute an offence under the OHSA and if an employee contracts the Corona Virus at the workplace due to an employer’s negligence, the employee could apply for increased compensation under the Compensation for Occupational Injuries and Diseases Act, 61 of 1997 resulting in an increased tariff being paid by the employer. Employers should therefore be vigilant to potential risks and impose measures to mitigate those risks.
11. But as an immediate measure, knowing some of the risks associated with the Corona Virus, an employer should consider the steps below (only to the extent applicable to the particular workplace) and incorporate them into an interim policy.

Limiting contact and increased hygiene

12. Employers must advise employees that the most important thing to help to slow down the spread of the Corona Virus, and to keep the business operating, is to continue working whilst limiting physical contact with their colleagues, clients, suppliers, contractors, customers etc. and rather to keep their personal distance by communicating via alterative means such as email, Skype, telephone etc. when possible.
13. We would advise employers to –

• • cancel all work-related events or meetings where large or even smaller groups of people will attend and to rather use written or electronic forms of communication where employees are not required to gather;
  • keep windows open as much as possible;
  • try to move working desks/areas further apart if possible;
  • display posters promoting hand-washing;
  • provide hand sanitiser or hand soap and ensure that they are filled or replaced regularly;
  • provide other hygiene equipment such as masks, gloves, protective suits to employees, subject to availability given that many concerns have been raised about the limited supply being designated for medical professionals;
  • provide paper tissues for those who develop a runny nose or cough at work, along with closed bins for hygienically disposing of them; and
  • clean offices, premises and workspaces as regularly as possible.

Instruction to all staff in relation to symptoms

14. We would advise that employers issue an instruction to all employees that if they start exhibiting symptoms or if they have reason to believe that they may have contracted the virus due to close contact with a person who tested positive, they should immediately report this to their employer. According to the World Health Organisation the symptoms include respiratory infections, fever, cough, shortness of breath and breathing difficulties and in more severe cases, pneumonia, severe acute respiratory syndrome and kidney failure.
15. Employers should then ensure that these employees are excluded from the workplace by requiring them to work remotely to avoid the risk of the virus spreading to other employees while they undergo medical testing as outlined below.
16. The same would apply in relation to employees who may not have symptoms but who for instance have been exposed to high-risk environments i.e. they travelled to a high-risk country, their spouse or children tested positive for the virus, they work in the tourism industry, or the employer imports goods from high-risk countries etc.
17. An employee should only be allowed to return from quarantine if a medical certificate can be provided confirming that the employee can return to work.

Employment contracts, policies, collective agreements and sectoral determinations

18. Before deciding how to deal with issues such as medical testing, leave, short time, retrenchments etc. employers should first consider whether there are contractual terms, policies, collective agreements or sectoral determinations that regulate or determine the issues.

Medical testing

19. Some employers are already using non-invasive “temperature guns” to measure their employees’ temperatures.
20. In relation to medical testing, section 7(1) of the Employment Equity Act, 55 of 1998 (the EEA) provides as follows:

7. Medical testing
   (1)    Medical testing of an employee is prohibited, unless-
            (a)   legislation permits or requires the testing; or
            (b)   it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the
   wwwwwinherent requirements of a job.
   
   (2)   Testing of an employee to determine that employee’s HIV status is prohibited unless such testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.

22. In our view the current pandemic would justify requiring employees to have themselves tested if there is a suspicion that they may have contracted the Corona Virus.
23. In addition to the above, testing, quarantine and isolation for notifiable diseases are dealt with in the Regulations relating to the surveillance and the control of notifiable medical conditions issued by the Minister of Health in 2017 in terms of the National Health Act, 61 of 2003. The Regulation requires certain individuals to be tested, medically examined, treated, isolated or quarantined.
24. This does not however apply when employers want to establish who their high-risk or vulnerable employees are i.e. those who for instance are pregnant, are immune compromised with HIV or suffer from chronic medical conditions such as diabetes, heart and lung disease.
25. Whilst employers can therefore require employees to undertake a test for the Corona Virus, they cannot require employees to undergo tests to determine whether they are high-risk employees.
26. Employers should rather give all their employees the option to provide it with proof of an existing condition which leaves them vulnerable in order for the employer to determine which employees should be allowed to work from home or should be placed on compulsory leave (deducted from annual leave or additional leave and not from sick leave as dealt with below).
27. Employees must be advised not to go to hospitals, clinics or doctors’ rooms straight away without exhibiting serious symptoms and to rather contact their doctors to obtain clarity on how to get tested. Many doctors are refusing to see patients in person and are having telephonic consultations instead. There is also a limit on free testing and doctors are therefore advising patients to self-quarantine until they exhibit symptoms after which they will be tested.
28. Employers can consider paying for medical testing via Pathcare directly. There is however a prescribed procedure that has to be followed to ensure that employees are not tested unnecessarily given the limited availability of tests.

 

Working from home

28. Employers who do not require employees to work from a specific workplace, should consider allowing them to work from home.
29. Employees must be informed that the terms of their contracts of employment remain in force in terms of hours of work and lunch hours. They are therefore required to devote their time to their work during their normal working hours as they are not on leave while they are working from home. Regulating work from home will be easier where employees have specific deliverables which can be easily measured.
30. Employers could be faced with claims from employees that they are unable to work from home without their tools of the trade such as Wi-Fi, printers, telephones etc. Alternative arrangements should be considered in these circumstances such as reimbursing employees for expenses incurred, allowances, access to the office in shifts to limit the number of employees at the workplace at the same time and the delegation of work that do not require these resources.
31. If employees refuse to attend work for fear of contracting the Corona Virus and they have not been granted permission to work from home, the employer should consult with these employees telephonically or via Skype to consider the specific employees’ reservations, investigate the reservations if necessary (i.e. if an employee is concerned that a fellow employee may have contracted the Corona Virus) and then decide whether or not to instruct the employees to come back to work, to work from home or to afford sick leave, annual leave, additional leave or unpaid leave to these employees. This could avoid or assist with unfair dismissal disputes and claims relating to leave at a later stage.

Leave

32. Whilst employers have to be firm and act consistently in relation to leave, these very uncertain times require employers to consider each case on its merits and to display a degree of leniency in the public interest.
33. Section 23(1) of the Basic Conditions of Employment Act, 9 of 2018 (the BCEA) still applies which states that an employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
34. There will obviously be employees who will use this opportunity to abuse their sick leave. This is why an employee should first provide a positive test result before their leave will be regarded as sick leave. The results should be emailed or sent via WhatsApp and should obviously not be delivered to the employers’ offices. Those employees who test positive must be instructed to take sick leave to self-quarantine themselves for two weeks.
35. Whilst employees who have depleted their sick leave would not be entitled to further paid sick leave from the employer, we would advise employers, as far as possible, to provide additional paid sick leave specifically for quarantine. This will avoid a situation where employees are worried about not being paid and do not come forward when they are in fact infected with the Corona Virus.
36. Should employers however not be inclined or not be able to afford granting additional paid sick leave, employees can also claim illness benefits in terms of section 20 of the Unemployment Insurance Act, 63 of 2001 (the UIA). There are however certain requirements that have to be met and procedures that have to be followed to qualify for this additional leave and the payment may be delayed, due to the amount of claims that may be submitted. COSATU has also called on the President to make further provision for the payment of UIF to employees who have contracted the Corona Virus but this has not yet been determined.
37. If employees test negative or if it is not reasonably practical for employees to work from home but employers are forced to send employees home due to an increased risk of contracting the Corona Virus at the office (i.e. someone in the office has contracted it), the employees can be required to take annual leave. This would be the same situation as forced leave over a holiday period.
38. Once their annual leave is depleted, we would advise employers to first consider affording additional annual leave to employees from an employee relations and public interest point of view. Some employers have sent employees home on additional annual leave given that they travel with public transport and are therefore a bigger risk to contract and spread the Corona Virus.

Unpaid leave

39. Employees who tender their services in terms of their contracts of employment cannot be forced to take unpaid leave unless there is an agreement to do so. Some employees may for instance request to take leave (whether paid or unpaid) to isolate themselves.
40. If an employer decides that an employee who is willing to work should not to come to work and the employee cannot work from home, that employee can be placed on paid leave but if that leave is depleted, the employee will still have to be paid.
41. If employees deplete their leave and employers are not inclined to grant additional leave, unpaid leave can be considered in addition to the options below.

Short-time and retrenchments

42. Whilst we would advise employers not to create panic amongst employees, we would also advise them to be realistic in its communication to its employees.
43. Employers should inform employees that everyone needs to continue working. For many businesses, without income, or if income is reduced, the business may not survive. In the public sector, employees need to work in order for government to be able fulfil its constitutional obligation to provide services to the communities that it serves, especially in this uncertain time.
44. If relevant, the communication should also provide that if the income cannot be maintained, the business may have no alternative but to consider short-time, retrenchments and the like which the company would want to avoid at all cost. This will hopefully assist in getting employees to appreciate the difficult times facing the country and that their well-being is linked to that of their employer.
45. Employers can also consider short time. Short time would however amount to a change to an employees’ terms and conditions of employment and therefore cannot simply be implemented unilaterally. An employer would therefore have to consult with the affected employees or where applicable with their union. Some bargaining councils also have specific provisions in their agreements dealing with short time.  Short time can also be implemented as an alternative to retrenchment.  An employer would however have to follow the procedure contained in section 189 of the Labour Relations Act, 66 of 1995 (the LRA) before being in a position to offer short time as an alternative to retrenchment.
46. On the topic of retrenchments, while this should be a last resort, the reality is that many employers are already facing difficult times as a result of the Corona Virus (such as restaurants, beauty therapists, massage therapists etc.) and need to consider retrenchment. As stated above the procedure contained in section 189 of the LRA would have to be followed and strictly managed given that employees will no doubt refer unfair dismissal and unfair labour practice disputes, if only in the hope of securing a financial settlement in these difficult economic times.

Dismissals due to ill-health

47. If there are employees who contract the Corona Virus and are away from work for extended periods of time, employers can consider following an incapacity ill-health procedure with those employees.
48. Such a process could result in their dismissal but has to be very carefully managed to ensure that unfair dismissal claims can be defended.
49. A decision to go this route should not be lightly taken. The world is facing the Carona pandemic and employers need to be sensitive to this fact.

Disciplinary measures

50. Employers might also be required to implement disciplinary measures against employees who refuse to follow instructions relating to its precautionary measures.
51. Whilst it is imperative that reasonable instructions are complied with to prevent the spread of the Corona Virus and to protect employees, employers must be reasonable and establish the reasons for the employees’ refusal to follow instructions. An employee’s refusal to be breathalysed or to attend a gathering of more than 100 people may for instance be justified and result in the employer amending its measures or putting additional measures in place to further protect its employees.
52. Employers can also consider amending their practice in relation to disciplinary hearings by for instance having hearings via Skype, affording the employee an opportunity to respond to the allegations in writing or postponing the hearings for the time being. It is again crucial that each case be assessed on its merits to determine the most suitable approach.

Travel

53. Travel should only take place if absolutely required and bearing in mind any travel ban or conditions imposed by government.
54. Employers should assess the benefits and risks relating to the specific travel and must avoid sending employees who may be at higher risk of serious symptoms if they contract the Corona Virus (e.g. older employees and those employees who are immune compromised or suffer from chronic medical conditions such as diabetes, heart and lung disease) to areas where there have been positive cases of the virus.
55. Employers should also remind employees of the safety precautions to be followed in order to avoid contracting the Corona Virus while travelling and the protocol to be followed should employees become infected or fear that they may have been infected.
56. Employees returning from travel should also be very carefully monitored for any signs of symptoms or be required to self-isolate on their return (i.e. to work from home).

The courts, CCMA and Bargaining Councils

57. It should also be borne in mind that whilst the courts, CCMA and Bargaining Councils have not yet closed down, directives have and will be issued by the courts, CCMA and Bargaining Councils to determine how they will deal with disputes and cases going forward.
58. Given the limited capacity that employers may soon face, it is imperative that disputes be dealt with and escalated to the appropriate person as soon as possible so that they do not fall through the cracks and result in further financial exposure at a later stage due to a lack of action on the employers’ side.

Conclusion

59. Each and every employer will have specific circumstances that will determine how they should deal with the Corona Virus and we therefore propose that these issues be dealt with on a case by case basis and that what is set out above be used as a guideline.
60. Please do not hesitate to contact us for further clarity in relation to the advice contained in this guideline.