The Coronavirus and your employees
Coronavirus in South Africa
The first confirmed case of the coronavirus (COVID-19) was confirmed in South Africa on 5 March 2020. As of the 6 March 2020, according to the World Health Organization (WHO), the coronavirus had approximately:
- At least 93,000 reported cases globally; and
- At least 3,100 reported deaths globally.
As of 31 July 2020, South Africa had:
- 493 183 confirmed COVID-19 cases; and
- 193 new COVID-19 related deaths.
Globally, more than 17.29 million have tested positive for coronavirus and 671,480 have died, according to a Reuters tally.
Common signs and symptoms of infection include respiratory symptoms, fever, cough, shortness of breath and breathing difficulties. In more severe cases, infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death.
Where an employee has presented with symptoms that may closely resemble the coronavirus, it is advisable that they take sick leave. The minimum standard for sick leave is 6 weeks during every 36-month sick leave cycle in terms of section 22 of the Basic Conditions of Employment Act 75 of 1997 (BCEA). This amounts to 30 days every 3-year cycle.
The employer may refuse to pay sick leave if the employee has been absent for more than two consecutive days or on more than two occasions during an eight-week period (see section 23 of the BCEA) unless the employee produces a medical certificate issued and signed by a medical practitioner.
Where an employee has exhausted their sick in their respective 3-year cycle, they may apply for annual leave. Section 20 of the BCEA provides, as a rule, that an employee is entitled to 21 consecutive days’ leave during a 12-month annual leave cycle.
Both sick leave and annual leave are paid by the employer.
Family responsibility leave
Where an employee suspects that an immediate family member, may have symptoms that closely resemble the coronavirus, they may be able to take family responsibility leave. Section 27 of the BCEA makes provision for family responsibility leave. This leave may only be taken in the case of certain specific events and an employer may require reasonable proof of the event having taken place. One may argue that the coronavirus may be one such specific event that would warrant family responsibility leave.
Family responsibility leave has certain conditions attached to it in terms of which relative may entitle an employee to take leave in terms of family responsibility. However, employers need to be sympathetic to different cultures, traditions and beliefs and to make reasonable accommodation for this when deciding whether to grant family responsibility leave in terms of relationship proximity.
It is common for an employee who becomes ill or who is injured to take excessive amounts of sick leave. However, an employee’s statutory and/or contractual sick leave is limited to 30 days in 3-year cycle. Once exhausted, it will become problematic for the employee.
There is no legal obligation imposed upon an employer to grant an employee unpaid leave and this is left at the sole discretion of an employer. Employers should in the appropriate circumstances, seriously consider granting an employee unpaid leave if he or she is ill.
If unpaid leave is granted, the contract of employment is not suspended nor is it terminated, the contract of employment will continue but the employee will not be paid his wage or salary. If an employee is granted unpaid leave, an employer may not permanently appoint a replacement in the employee’s position. The employer may, however, temporarily appoint an employee to perform the incapacitated employee’s duties until such time as that employee has recovered and is well enough to return to work.
Alternative arrangements – working from home
Where it is possible for businesses to do so, they may encourage their staff to work from home. This is not the same as taking leave. The employee will be expected to work a full day as per usual, however instead of going into the workplace to do so, they would be performing their functions from home.
It is also worth noting, that depending on the resources that an employee would require, they may not be able to work to their full capacity.
Directions from the Department of Labour
The Department Of Employment And Labour published the Direction By The Minister Of Employment And Labour In Terms Of Regulation 10 (8) Of The Regulations Issued By The Minister Of Cooperative Governance And Traditional Affairs In Terms Of Section 27 (2) Of The Disaster Management Act, 2002 (Act No. 57 Of 2002) (the Directions). These Directions aim to give employers guidance on what health and safety measures that need to be adopted during this time.
The Directions advise that:
- employers must undertake a risk assessment to give effect to the minimum measures required considering the specific circumstances of the workplace.
- if the
employer employs more than 500 employees, that employer must submit a record of
its risk assessment together with a written policy concerning the protection of
the health and safety of its employees from COVID-19 as contemplated in section
7(1) of Occupational Health and Safety Act 85 of 1993 (OHSA) to:
- its health and safety committee established in terms of section 19 of OHSA; and
- the Department of Employment and Labour.
- employers must notify all workers of the contents of the Direction and the way it intends to implement it;
- employers must notify its employees that if they are sick or have symptoms associated with the COVID–19 that they must not come to work and to take paid sick leave in terms of section 22 of the BCEA;
- employers must appoint a manager to address employee or workplace representative concerns and to keep them informed and consult with that committee on the nature of the hazard in that workplace and the measures that need to be taken;
- employers must ensure that the measures required and its risk assessment plan are strictly complied with through monitoring and supervision;
must, as far as practicable, minimize the number of workers on at the workplace
at any given time through
- staggered working hours,
- shift systems,
- remote working arrangements or
- similar measures,
in order to achieve social distancing;
- employers must take measures to minimize contact between workers as well as between workers and members of the public;
must provide workers with information that raises awareness in any form or
manner, including where reasonably practicable leaflets and notices placed in
conspicuous places in the workplace informing workers of the:
- dangers of the virus,
- the manner of its transmission,
measures to prevent transmission such as:
- personal hygiene,
- social distancing of a minimum of 1.5 metres between workers while working,
- use of masks,
- arrange physical barriers to be placed between workstations or erected on work stations to form a solid physical barrier between workers while they are working,
- cough etiquette, and
- where to go for screening or testing if presenting with the symptoms.
Health and safety measures to be implemented
Every employer must take measures to:
any worker, at the time that they report for work, to ascertain whether they have
any of the observable symptoms associated with COVID-19, namely:
- sore throat,
- redness of eyes or
- shortness of breath (or difficulty in breathing);
every worker to report whether they suffer from any of the following additional
- body aches,
- loss of smell,
- loss of taste,
- weakness, or
- tiredness; and
- require workers to immediately inform the employer if they experience any of the above symptoms while at work.
What happens when an employee presents with symptoms
The employer must:
- not permit the worker to enter the workplace or report for work; or
- if the
worker is already at work, to immediately:
- isolate the worker,
- provide the worker with a FFP1 surgical mask; and
- arrange for the worker to be transported in a manner that does not place other workers or members of the public at risk either to be self-isolated or for a medical examination or testing; and
- assess the risk of transmission;
- disinfect the area and the worker’s workstation;
- refer those workers who may be at risk for screening and take any other appropriate measure to prevent possible transmission;
- ensure that the worker is tested or referred to an identified testing site;
- place its employee on paid sick leave in terms of section 22 of the BCEA or if the employee’s sick leave entitlement under the section is exhausted, make application for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme under regulation 10(8) of the Regulations promulgated in terms of section 27(2) of the Disaster Management Act; and
- ensure that the employee is not discriminated against on grounds of having tested positive for COVID-19 in terms of section 6 of the Employment Equity Act, 1998 (Act No. 55 of 1998).
Exposure to Covid-19 as a result of the occupation
If there is evidence that the worker contracted COVID-19 as a result of occupational exposure, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993) in accordance with Notice 193 published on 3 March 2020.
What to do if an employer contracts Covid-19
If a worker has been diagnosed with COVID-19, an employer must:
- inform the Department of Health and the Department of Employment and Labour;
- investigate the cause including any control failure and review its risk assessment to ensure that the necessary controls and PPE requirements are in place; and
- it must give administrative support to any contact-tracing measures implemented by the Department of Health.
If a worker has been diagnosed with COVID-19 and isolated in accordance with the Department of Health Guidelines, an employer may only allow a worker to return to work on the following conditions:
- The worker has undergone a medical evaluation confirming that the worker has been tested negative for COVID-19;
- the employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette is strictly adhered to by the worker; and
- the employer closely monitors the worker for symptoms on return to work.
Standard recommendations to prevent infection
Standard recommendations to prevent infection spread (from WHO) include:
- social distancing where possible;
- wearing a mask when in public:
- regular hand washing;
- covering mouth and nose when coughing and sneezing;
- thoroughly cooking meat and eggs;
- avoid close contact with anyone showing symptoms of respiratory illness such as coughing and sneezing.
Provision of hand sanitizers and disinfecting the workplace
Every employer must, free of charge, ensure that:
- there is enough hand sanitizer based on the number of workers or other persons who access the workplace at the entrance of, and in, the workplace which the workers or other persons are required to use;
- a hand sanitizer must be one that has at least 70% alcohol content and is in accordance with the recommendations of the Department of Health; and
- every employee who works away from the workplace, other than at home, must be provided with an adequate supply of hand sanitizer.
Every employer must take measures to ensure that:
- all work surfaces and equipment are disinfected before work begins, regularly during the working period and after work ends;
- all areas such as toilets, common areas, door handles, shared electronic equipment are regularly cleaned and disinfected;
- disable biometric systems or make them COVID-19-proof.
The employer must also ensure that:
- there are adequate facilities for the washing of hands with soap and clean water;
- only paper towels are provided to dry hands after washing – the use of fabric towels is prohibited;
- the workers are required to wash their hands and sanitize their hands regularly while at work;
- the workers interacting with the public are instructed to sanitize their hands between each interaction with public; and
- surfaces that workers and members of the public encounter are routinely cleaned and disinfected.
For any further information, please feel free to contact us at email@example.com
The South African Department of Health’s Corona Virus Outbreak 24-Hour Hotline Number is 08 000 29999 or you may visit http://www.health.gov.za/index.php/outbreaks/145-corona-virus-outbreak/465-corona-virus-outbreak
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).