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The State President addressed the nation last night, declaring a national state of disaster as a consequence of the break-out of the COVID-19 pandemic in South Africa. He announced a number of sweeping measures aimed at mitigating the risk of the pandemic, as well as advocating the correct actions to be taken by citizens in order to protect themselves against infection.
We have been inundated with queries and requests for clarity from members. This communication provides some clarity on the most commonly asked questions. We also attach some useful information you can share with your members.
From a health and safety perspective what legal obligations does an employer have in light of the global outbreak of COVID-19?
The Occupational Health and Safety Act 85 of 1993 places an express obligation on the employer to maintain a working environment that is safe and healthy. On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as it is reasonably practical. Within the context of the COVID-19 crisis, there is a clear obligation on the employer to manage the risk of contamination in the workplace.
The employer needs to ensure the workplace is clean and hygienic; promote regular hand-washing by employees; promote good respiratory hygiene by employees and keep employees informed on developments related to COVID-19. The employer is however under no obligation to provide masks, as this has been proven to be ineffective as a measure to contain contracting COVID-19. Hand sanitisers must however be provided for use by staff and clients, whilst on the employer’s premises.
What practical steps can an employer take to ensure that the workplace is safeguarded from COVID-19?
As an initial step, the employer should conduct a comprehensive risk assessment to determine the likelihood of contamination in the workplace. This assessment should include a contingency and business continuity plan should there be an outbreak of the illness. At this stage, given that South Africa only has 61 confirmed cases of COVID-19, the risk of contamination is mild.
However, employers should consider the following proactive steps given the scale of the illness globally
Follow health advice and information: the employer should follow health advice from the World Health Organisation (WHO) (as an international source) and the Department of Health and the National Institute of Communicable Diseases (as local sources).
Communicate with employees: the employer should consistently provide updates on COVID-19 to employees and its approach at work regarding attendance and preventing the spread of infection. The employer may also wish to display posters that provide information on the illness and hygiene.
Prevent the spread of infection: the employer should ensure there are adequate facilities for employees to wash and/or sanitise their hands regularly within the workplace. If it becomes necessary, the employer may introduce a designated area in the workplace where employees may self-isolate if they experience symptoms whilst at work. The WHO has advised that, in countries where the illness has started spreading, employees with a mild cough or low-grade fever (37.3 or more) should be encouraged to stay at home and seek medical attention immediately.
Identify vulnerable workers: COVID-19 poses a greater risk to employees with weakened immune systems and long-term health conditions. Vulnerable workers include pregnant employees and disabled employees. Employers should pay special attention to such employees.
Update emergency contact information: employees should be required to review and update their emergency contact information.
If any employee is placed under quarantine by the employer, should the employee be required to take sick leave?
An employer may require an employee to be quarantined if the employee recently travelled to an affected country or if the employee displays symptoms of the illness whilst at work. In the case of compulsory quarantine i.e. quarantine required and enforced by the employer, the employee will be deemed to be on special paid leave. If that employee produces a medical certificate confirming the employee remain in quarantine, the special paid leave will be converted to sick leave.
What if an employee requests self-quarantine?
In the case of voluntary quarantine i.e. quarantine at the request of the employee for precautionary purposes, the employee is not proven sick yet and therefore, sick leave or special paid leave should not be imposed.
The employer may wish to consider making it possible for the employee to work from home and put certain measures in place or assist such an employee to work from home. This is up to the discretion of the employer. If both are happy, no leave needs to be awarded.
If it is not possible for the employee to work from home and no doctor’s certificate can be provided, this time will be viewed as unpaid leave.
The employer must carefully consider the circumstances under which special paid leave will be awarded to employees. These circumstances must be made clear to employees. It should be an option of last resort as it may be open to abuse by employees.
If the illness spreads across South Africa, the reality for employers is that employees may request to be placed in quarantine to minimise their risk of infection. In this instance, the employer will need to consider implementing remote working for employees who can work from home. The guidelines above need to be applied to determine which form of leave will apply, however as a rule, self-isolation without a medical certificate should not be treated as paid sick leave.
What happens after the quarantine period?
After the quarantine period and even if an employee does not display any symptoms, the employer may nevertheless require the employee to be tested by a medical practitioner and to provide the employer with a medical certificate confirming that the employee can return to work.
What is a reasonable period of quarantine?
The WHO has indicated that a person should be in quarantine for a period of at least 14 days if such a person has tested positive for the COVID-19 virus.
What if an employee contracts COVID-19?
In such an instance, the employer should apply its sick leave policy to such an employee. The employee must obtain a medical certificate and any time out of the office will be considered as sick leave.
Due to the nature of the illness, an employee with COVID-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.
What if sick leave is exhausted?
An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, we recommend that authorised unpaid leave be considered. In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (UIA). In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness.
What are the basic requirements for the medical certificate?
The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council.
When can an employee be dismissed due to the Coronavirus?
In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors to take into account in considering alternatives to dismissal include, the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. During this process, the ill employee should be given an opportunity to make recommendations as well. Only once all these processes have been followed and no alternative to dismissal found, may an employer consider dismissal. For assistance with this process, kindly contact any one of the RMI’s IR Specialists employed at our Regional Offices.
May employers consider retrenchments due to the impact of the Corona virus?
Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. Operational requirements is defined as requirements based on the economic, technological, structural or similar needs of the employer.
A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees. At this point, the Coronavirus is unlikely to trigger an operational need. The recommended period for recovery/isolation is 14 days – this in itself cannot trigger a need to retrench. However, should a large number of employees be infected, an operational need could possibly arise in future. In the event that business declines to such an extent that the business is at risk, retrenchments may also be considered. As an interim measure, short time in terms of the MIBCO Main Agreement may be implemented. Even though the Main Agreement is currently inoperable, the process contained therein, should be followed.
For assistance with this process, kindly contact any one of the RMI’s IR Specialists employed at our Regional Offices.
What can be done about employees who refuse to come to work?
Employees remain obligated to come to work, unless instructed otherwise by their employers. Employees who refuse to come to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work. Employees who stay away from work without a valid reason, may face disciplinary action. We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation.
May an employee’s professional or personal travel plans be restricted?
Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or weekends. Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees or customers.
What measures has the RMI implemented?
- The RMI has suspended all domestic and air travel for its staff, and has confined its staff members to their respective offices during working hours. You will therefore be able to contact any of our staff members either on their office or cellular phone numbers.
- The RMI has further implemented sanitation measures at all of its offices, aimed at mitigating the spread of the COVID-19 virus. Members that visit RMI offices are requested to strictly comply with these measures, and any other directive received upon arrival at these offices.
- All RMI regional and associational activities will be suspended with effect from 00:00 on the 18th of March 2020 until further notice. These activities include roadshows, member meetings, and the like. The provision of an on-site IR service, such as disciplinary enquiries, representation at the DRC/CCMA, etc., as well as the consumer dispute facilitation service will continue in special circumstances. Members are encouraged to make use of these service on a telephonic or other digital basis, unless there is an absolute necessity for one of our members of staff to assist you at your business or represent your business at dispute resolution events.
As responsible corporate citizens and valued members of the RMI, I would urge you to take your responsibility as an employer seriously. Demonstrate leadership. It is a common misconception that leadership lies with government only. This is not true – leadership is everywhere. Every employer, every manager, every teacher, every public servant, every parent is a leader. Everyone who makes decisions on behalf of other people is a leader. Every handshake is a decision.
There is no reason to panic. It is very unlikely that the supply chain, which provides us with our life’s necessities like food and clothing will collapse as a result of this virus. Humanity has fought much nastier bugs than this, and won, every time. We will win this time, too.
If you have any questions of concerns, please do not hesitate to speak to any of our staff. We will do our best to provide answers and solution, where possible, however in the interim, I rely on your unwavering support for these measures.
CEO: RETAIL MOTOR INDUSTRY ORGANISATION