Coronavirus - Employment law update - South Africa

• South Africa

• Coronavirus - Country overview
• Employment law

12-03-2020

Overview

Our previous briefing on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the CoVID-19 outbreak. In this briefing we address some common questions raised by South African employers.

General Principles

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)
• assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; 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
• review their need for flexible working and whether existing contracts and working arrangements permit such flexibility and, if not, consider to what extent and how this might be achieved
• review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
• review relevant insurance policies and guidance issued by their insurers
• update contact details for essential staff during this time and management
• devise arrangements for dealing with staff who have to travel abroad; who may be at particular risk of contracting CoVID-19 or who report symptoms and may have CoVID-19

1. Employer’s duty of care – what does the law in South Africa say?

Employers in South Africa 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 annually regarding the risks to the health and safety of employees and anyone else who may be affected by the employer’s business.

Employers should therefore consider whether their existing arrangements for protecting staff 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 government or the WHO. This would include conducting risk assessments to identify the likelihood of staff contracting CoVID-19 whilst at work and appropriate measures to control that risk.

Some South African businesses have started to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to CoVID-19, for example, those in contact with medical patients or visitors from high-risk regions.

Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc.).

Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area.

If an employer fails to implement appropriate measures then it will potentially 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 “serious and imminent danger”.

Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self-quarantined; who have travelled to high risk destinations; who propose going on holiday to such destinations; or who appear to be at risk or are ill, potentially with CoVID-19.

Employers may wish to assemble a project team with members specialising in employee relations; insurance; travel and events; communications and occupational health to work together on developing appropriate protocols.

Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of constructive dismissal or discrimination claims.

In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation.

2. Business travel – should travel be restricted?

Employers may also consider implementing policies to minimise the risk of employees catching CoVID-19 in the workplace, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling non-essential business travel and meetings.

As the outbreak is spreading, employers should assess the need for staff to travel abroad; their right to require staff to travel or work in specific locations; and whether additional measures are necessary to protect staff travelling on business.

These measures may include contingency planning for the possibility of staff being quarantined or falling ill when travelling abroad. Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate.

In considering whether staff 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.

3. Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. Staff contracts may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before exercising their rights to require flexible working and should listen sympathetically if staff have personal reasons why they cannot work flexibly.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with a recognised union if one (or more) is recognised in the workplace.

If the individual (or a union on their behalf) refuses to agree these changes then, depending on the circumstances, it may be possible to impose them either following consultation or 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. If a recognised union is in place then the employer should take legal advice before proceeding to implement changes without the union’s agreement.

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.

Alternatively, 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 enforced removal from the workplace lasts no longer than is necessary and they are provided with support.

4. Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. Employers should to listen to the reasons for their concerns and try to find an agreed resolution. Where work can be undertaken from home, it may be possible to agree home working for a short period.

In other cases, such as site-based work or where staff are unable to work due to caring for dependants, it may be possible to agree that time away is taken as holiday or unpaid leave. The employer may be able to provide support and advice via an existing Employee Assistance Programme. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, the principle of no work no pay can be applied or, in extreme cases, disciplinary action could be considered.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. Legally, employees have a right to 3 days' paid family responsibility leave, which includes for circumstances where a child is sick. In addition to this, employers should consider employees’ requests for a reasonable amount of unpaid time off work to deal with domestic emergencies. Staff may also request flexible working, which should be considered by employers where possible and practicable.

5. If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with CoVID-19 will normally 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 them with a valid medical certificate for the period of absence.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick children, is legally capped to 3 days per year. It may be that employers have more favourable terms, in which case this should be determined in accordance with their employment contract and the employer’s usual policy, ensuring that all requests are treated in a reasonable and consistent manner.

In these particular circumstances, and in addition to the above, employers should consider giving employees who require it a reasonable amount of unpaid time off work to deal with domestic emergencies affecting their dependants, including unexpected disruption to arrangements for the care of their children.

The position of staff 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. 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 holiday.

Employers should decide how they intend to deal with such scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated to employees in advance.

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

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from high-risk areas and training managers to spot symptoms of CoVID-19.

Individual staff contracts may permit checks. 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 can request staff to report if they are infected or have been exposed to infection. However, under data protection law, such information about an individual’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.

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. If there is a decreased requirement for staff 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.

8. What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

• create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
• devise an appropriate communications plan to keep staff 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 staff 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 widespread home working
• review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
• 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 sickness and ensure that it is reasonable, fair and applied consistently

9. 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.

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

10. 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 World Health Organisation. 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 staff 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.

11. 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.