Covid-19 and the Workplace

As we are sure you are aware, on 15 March 2020, President Ramaphosa declared a national state of disaster following the rapid spread of the COVID-19 Coronavirus within our borders. Following the announcement our office was inundated, quite understandably so, with questions pertaining to precautionary measures which should be implemented, how to deal with absences and how to mitigate the effects on production.
In this newsletter we therefore aim to answer these questions and to provide guidance on how to deal with this unprecedented situation.


What is COVID -19 (Coronavirus)?
The COVID-19 virus is described by the World Health Organisation (WHO) as a novel strain of virus belonging to the coronavirus family which cause illness ranging from the common cold to more severe diseases. Since the first case was reported in December 2020, more than 203 612 cases has been reported worldwide to date, resulting in the WHO declaring the outbreak a pandemic.

What does this mean for Business?
At the time of the writing, South Africa has reported 240 confirmed cases of the COVID-19 virus. Although this number might seem insignificant, it is the rapid spread thereof, from 1 confirmed case on 3 March 2020 to a 116 cases a mere 15 days later, that is of concern. The rapid spread of the virus has the potential of causing large scale quarantines, travel restrictions, a sharp fall in consumer and business spending, producing a recession and ultimately feeding a self-reinforcing downward spiral of loss in revenue, layoffs and eventual complete business shut down.
It is therefore imperative for all employers to take immediate proactive measures to mitigating the risk of infections within the workplace.


Workplaces with more than 100 employees
As part of the measures set out during President Ramaphosa’s address on 15 March 2020,
gatherings of more than 100 individuals at a time are prohibited. The question is does same apply to employers with more than 100 employees? The short answer is no. Reporting for duty does not equate a “gathering” for purposes of the prohibition and employers are therefore well within their rights to expect employees to report for duty as normal.
However, employers should take heed that meetings, addresses and events of more than 100 staff at once, might well constitute a contravention of the gatherings prohibition and we therefore advise that the staff be split up into smaller groups or communications be sent via email, WhatsApp messenger, sms and / or via newsletters pinned to the notice boards.

Reporting for duty is also not classified as an event for purposes of the prohibition, however, employers should be careful of what could constitute an event such a hosting seminars and workshops and same should be postponed. If not possible and even where said events / gatherings are small, stringent preventative measures should be put in place, such as limiting the distance between attendees, requesting attendees to wear masks at all times and to wash / sanitize their hands before entering and exiting the venue.

We also advise that proactive steps be taken to increase hygiene in the workplace, such as where feasible, making the wearing of masks mandatory and having employees wash / sanitize their hands prior to entering and exiting the workplace.

Working from home
We are sure you have heard the new buzz word “self-isolation”, where people are isolating
themselves socially in order to prevent infection. Although this is the preferable ideal in these trying times, it is not always feasible as self-isolation could result in a complete stay in production.


It is important to note that employees are not currently entitled to merely stay away from work in order to self-isolate. Similarly, there is no legal obligation on employers to allow employees to work from home. At all times, there is still a contractual obligation between employers and employees which require the rendering of services in exchange for remuneration. This means that employees wishing to work from home must request permission to do so and should they fail to report for duty, disciplinary action should be taken.

However, even though there is no legal obligation on employers at this stage to allow employees to work from home, it is advisable to identify those employees who are capable of exercising their duties and responsibilities from home to encourage self-isolation. Early identification will enable employers to take pro-active measures should same became mandatory. It is important to note that employers are not required to compensate or foot the bill should employees work from home.


We do however advise that where working from home is a viable option that employers allow employees the opportunity to do so, of course with the understanding that the same
expectations and rules which apply at the workplace, will apply at home. This means that
employees must be available during working hours and complete their duties and responsibilities as normal.

For those employees where self-isolation whilst working from home is not an option, the
guidelines released by the Department of Labour, which we set out below, must be implemented.

Leave and Absences
We have no doubt that some employees will use the COVID-19 outbreak as an excuse to not report for duty, using reasons such as “I fear infection” or “I am not feeling well”.
It is important therefore to be prepared to deal with and mitigate the effects thereof, be it real or feigned.


Requests for Self-isolation / Quarantine
Where an employee is fearful of infection and wishes to self-isolate / quarantine this does not amount to sick leave and should not be deducted from their available sick leave. In these instances it is necessary to consider whether the said employee is capable of working from home or not.

Where the employee is able to work from home, no leave will be implemented. However where the employee is unable to work from home, said employee would need to apply for annual leave in line with the annual leave policies and procedures in place. The granting of annual leave is at all times within the discretion of the employer.


The normal rules relating to annual leave will of course still be applicable, meaning that where an employee applies for annual leave which has been carried over from the previous leave cycle within 6 month following the conclusion thereof, same may not be denied.

Where the employee does not have any annual leave remaining, said employee can apply for unpaid leave, the granting of which is in the employer’s discretion. However, please note that since the closure of schools from 18 March 2020 has been implemented, certain employees might have no choice but to stay at home. These employees should apply for annual leave, failing which they’d have to take unpaid leave.


Forced Self – Isolation / Quarantine – By Employer
In cases where an employee has travelled from a high risk country (Italy, Iran, South Korea, Spain, Germany, the United States, the United Kingdom and China) or medium risk country (Portugal, Hong Kong and Singapore) or has had physical contact with an individual who tested positive for the COVID-19 virus or shows symptoms of same, it is advisable for employers to deny said employee access to the workplace for at least 14 days, being the prescribed duration as set by the World Health Organisation. This is also known as forced isolation / quarantine.


Although the Basic Conditions of Employment Act does not regulate forced leave, Labour
Minister Thulas Nxesi announced on 17 March 2020, that where an employee is forced to selfisolate / quarantine for 14 days, such leave will be recognized as special leave and employees will be permitted to claim UIF, on condition that the reason for the quarantine meets the requirements and that employee can apply for UIF benefits.

Should an employee be required to self – isolate / quarantine for longer than 14 days such further leave, although still classified as a special leave, will be unpaid as the employee will be eligible to apply for unemployment insurance benefits.


Compulsory Isolation / Quarantine – By Medical Practitioner
In the event that an employee is placed in quarantine by a medical practitioner and a medical certificate has been issued in this regard, the employee will be placed on sick leave and not special leave. Should it be possible however for the employee to work from home, the employee’s absence from the workplace will not be regarded as sick leave, special leave or annual leave.


It is important to note that forced leave does not equate sick leave since the employee’s absence from work is not based on actual perceived illness but on a suspicion thereof.
It might be necessary to develop and implement a forced leave policy in this regard which makes provision that where employees expose themselves to infection either negligently or recklessly such as by being in physical contact with a known carrier or COVID-19 patient or who travels abroad for private purposes, they will be required to stay away from the workplace. In this case, the forced leave will be regarded as unpaid or annual leave.


Absence due to infection
Where an employee has taken ill, the usual rules relating to sick leave will apply. In other words only where the employee is genuinely too ill to work, would they be entitled to paid sick leave.
This means the employee would still require a medical certificate excusing him / her from work.
Given the rapid rate of infection of the COVID-19 virus, it is advisable that any employee returning to work after being infected, be first tested and cleared by a medical practitioner before being allowed to enter the workplace.


Government Interventions
On 16 March 2020, NEDLAC convened a special executive committee meeting in which the
following measures were implemented:

  1. Employers are required to maintain a safe and healthy work environment and are thus
    required to conduct a health and safety risk assessment in consultation with employees
    and must develop and implement an infection control plan based on the said assessment.
    The guidelines and information for same is available on www.labour.gov.za.
  2. Employers must apply stringent rules relating to hygiene, such as making hand wash
    facilities available in the workplace.
  3. Should an employee be absent from work due to self-isolation following their return from
    international travel or after being in contact with a person infected with the COVID-19
    virus, such absence will be regarded as special leave.
  4. Should a business be required to close their doors due to potential contamination,
    officials from the UIF will be dispatched to assist employees with the submission of claims
    for the duration of the closure.
  5. Where businesses lands in trouble as a result of the COVID-19 virus, assistance will be
    given by the National Treasury. We are currently awaiting further information in this
    regard and will revert as soon as same becomes available.
  6. Employees who contract the virus whilst exercising their duties and responsibilities, will
    be entitled to institute a claim in terms of the Compensation for Occupational Injuries and
    Diseases Act (COIDA).




Furthermore, on 17 March 2020 Labour Minister Thulas Nxesi stated that a period of reprieve from Unemployment Insurance Fund (UIF) contributions will be considered where companies temporarily close as a precautionary measure to avoid infection. Funds will be made available from the Temporary Employer/ Employee Relief Scheme to ensure that workers are not laid off.


Employer’s considering a short term shut down, must inform the UIF as soon as possible where after assistance will be given to institute claims.
Furthermore, employers are required to provide necessary protective equipment to all
employees and put in place systems to deal with an outbreak of the COVID-19 virus in the
workplace, as well as including all mitigating measures that are to be put in place until the
outbreak has been dealt with.


The Department of Health has also launched a website, www.sacoronavirus.co.za, containing useful information pertaining to the COVID-19 virus which should be shared with employees.
The Department of Labour has also developed a COVID-19 guideline. This COVID-19 planning guidance was developed based on traditional infection prevention and occupational hygienepractices. It focuses on the need for employers to implement the following:


• Engineering controls – isolating employees from work-related hazards, installing highefficiency air filters, increasing ventilation rates in the work environment and installing
physical barriers such as face shields to provide ventilation.


• Administrative controls – these controls require action by the employee and employer.
Examples of administrative controls include: encouraging sick workers to stay at home;
minimizing contact among workers, clients and customers by replacing face-to-face
meetings with virtual communications e.g. conference calls, Skype, etc.; minimising the
number of workers on site at any given time e.g. rotation or shift work; discontinuing
nonessential local and international travel; regularly check travel advice from the
Department of Health at: www.health.gov.za; developing emergency communications
plans, including a task team for answering workers’ concerns and internet-based
communications, if feasible, providing workers with up-to-date education and training on
COVID-19 risk factors and protective behaviours (e.g. cough etiquette and care of PPE);
training workers who need to use protective clothing and equipment on how to put it on,
use/wear it and take it off correctly, including in the context of their current and potential
duties. Training material should be easy to understand and available in the appropriate
language and literacy level for all workers.

• Safe Work Practices – these include procedures for safe and proper work used to reduce
the duration, frequency, or intensity of exposure to a hazard. Provide resources and a
work environment that promotes personal hygiene. For example, no-touch refuse bins,
hand soap, alcohol-based hand rubs containing at least 70 percent alcohol, disinfectants,
and disposable towels for workers to clean their hands and their work surfaces, regular
hand washing or using of alcohol-based hand rubs, and display handwashing signs in
restrooms.


• Personal Protective Equipment (PPE) – while engineering and administrative controls are
considered more effective in minimizing exposure to SARS-CoV-2, PPE may also be
needed to prevent certain exposures. Examples of PPE include: gloves, goggles, face
shields, face masks, gowns, aprons, coats, overalls, hair and shoe covers and respiratory
protection, when appropriate. Employers should check the NICD website regularly for
updates about recommended PPE

The department has requested employers and workers to use this planning guidance to assist in identify risk levels in the workplace setting and to determine any appropriate control measures which needs to be implemented.
The Department of Employment and Labour is keeping its labour centres opened and has put in place a Crisis Management Team which will be guided by the Department’s business continuity plan. A coronavirus hotline has also been set up on 0800 02 9999.


Mitigating Losses
Given the potential and very real dire economic impact the COVID-19 virus may have on
employers as well as the South African economy, it is no surprise that employers are reeling with concern. It is thus important to be aware of the measures available to employers in order to mitigate the potential loss of income as a result thereof.

Please note that the following measures are given for information purposes only and we urge our clients to contact our offices should they wish to implement same as implementation requires adherence to strict legislative procedures.


Short – time
Where production decreases drastically, employers can implement what is known as short-time, which requires employees to work fewer hours and being remunerated only for the hours actually worked.


Temporary Retrenchments
Where operational requirements require business activities to come to a complete halt,
employers can retrench employees on a temporary basis. This means that up until the time when business activities resume, employees are not rendering services and are therefore not entitled to remuneration. Employees retrenched on a temporary basis are however entitled to claim UIF benefits during this period.


Unpaid Leave
Employers and employees can also agree that unpaid leave is to be implemented for a certain period of time.


Conclusion
There is no doubt that the rapid and sudden outbreak of the COVID-19 virus has businesses and government venturing into uncharted waters. However by being proactive in mitigating the potential effects on the workplace, we have no doubt that employers will be able to successfully navigate through these testing times.

We advise all our clients to put in place measures, to follow health advise and information to prevent the spread of infection, to communicate with and update employees as the situation progresses, to update emergency contact information and to identify vulnerable workers, such as those with pre-existing conditions, pregnant employees and disabled employees.


Should you have any further questions or require assistance herein, please do not hesitate to contact our offices.