This article is Part 2 of a 2-part series wherein practical guidance is given in relation to COVID-19 and the workplace. In Part 1, some of the interventions and measures that have been put in place by the Government to try to mitigate the effects of COVID-19 on employers and employees were discussed. In Part 2, we will unpack some COVID-19 workplace related issues and considerations that stem from South Africa's general and pre-State of Disaster employment law.
Other workplace-related considerations during the lockdown
Essential staff performing essential services
In terms of the Regulations affecting the workplace, only essential staff performing essential services can attend at their workplaces to work during the Lockdown.
Accordingly, for essential goods/services providers and their staff members who have been designated as essential staff in the prescribed manner, it is (in theory) "business as usual".
One of every employee's main obligations is to come to work. Absent any agreement or arrangement to the contrary, employees do not have a right to work from home and employees who do not attend at work have to have a valid reason for not doing so, or get authorisation from the employer to not attend at work.
Therefore, essential staff members are obliged to tender their services to their employer during the Lockdown, as they would in the ordinary course. Employers and essential employees may come to a different agreement or arrangement in respect of the employees' services during the Lockdown. For example, employers may allow essential staff to work from home rather than attend at the office. Considering the reasons for the Lockdown, and depending on the circumstances, it may be advisable that employers allow essential staff who are able to work remotely to do so.
If essential staff stay away from work without a valid reason or without authorisation or refuse to work as required during the Lockdown, their employer would be entitled to:
- apply the principle of "no work, no pay"; and
- take disciplinary action against them for inter alia unlawfully refusing to work and/or insubordination for refusing a lawful and reasonable instruction to come to work.
There are, however, limited instances in which employees may refuse to come to work. One of these instances is where the environment in which they are working is unsafe, either in terms of the Occupational Health and Safety Act (OHSA) or in terms of the Mine Health and Safety Act.
Should it be necessary during the Lockdown, it would be possible to approach the Labour Court in relation to disputes relating to essential staff. The court has made provisions for operation during lockdown, which we cover in our article ' Proceedings in the Labour Court and the CCMA during the State of Disaster and Lockdown'.
Essential staff will be entitled to their normal sick leave, annual leave and family responsibility leave benefits stipulated in the Basic Conditions of Employment Act (BCEA) and in their terms and conditions of employment.
The payment of employees during the Lockdown and working remotely
Strictly speaking, an employer is not obliged to remunerate an employee during the Lockdown if that employee is precluded or prevented from tendering their services to their employer due to the Lockdown. There are, however, various factors that have to be considered, including whether employees are able to tender their services remotely, either in full or partially, and work remotely during the Lockdown. Where it is possible for employees to work remotely, it is advisable that the employer sets out the "rules" relating to working from home in a policy – for example, setting out what employees' deliverables are, what employees' required communication with team members is, and what employees' hours of work per day are.
The Department of Labour has, however, encouraged employers to continue paying employees where it is economically possible. Government has also put measures in place to mitigate any adverse effects that may befall employers and employees, where employers are required to shut down and employees are laid off temporarily because of COVID-19. You can read more on this topic in our ' COVID-19 and the Workplace Part 1' article.
Health and safety at the workplace
The OHSA requires employers to implement and maintain a working environment that is safe and without risk to the health of their employees. Nevertheless, in terms of OHSA, the employee and the employer share the responsibility of maintaining the health and safety standards of the workplace. Accordingly, employees and the employer must identify dangers in order for the employer to develop control measures to make the workplace safe. Employees are therefore required to inform the employer if they are aware of any risk to the health of other employees in the workplace and abide by any policies adopted by the employer to curb the spread of COVID-19. Where an employee knows that he/she or a colleague is, or that there is a reasonable chance that he/she or a colleague may be, infected with COVID-19, it may be required that this be disclosed to the employer in light of the Regulation which provides that "any person who intentionally exposes another person to COVID-19 may be prosecuted for an offence, including assault, attempted murder or murder".
As noted in the Guidelines issued by the Department of Labour, in accordance with the OHSA:
- current risk assessments need to be reviewed, and updated, taking into account new hazards posed by exposure to COVID-19 in the workplace; and
- a risk assessment should be conducted in the workplace to determine the risk of exposure to COVID-19 and be communicated to all employees.
Health and safety in the workplace and the obligation in this regard on both employers and employees remain extremely important during the Lockdown for essential services employers and employees.
COVID-19 Lockdown and leave
Employees are entitled to leave in terms of the BCEA, as well as any additional leave afforded to employees in terms of their terms and conditions of employment. In terms of the BCEA, an employee is entitled to one day of annual leave on full remuneration for every 17 days the employee worked or was entitled to be paid, which equates to approximately 15 days of paid annual leave per year. In accordance with section 20(10) of the BCEA, annual leave may be taken at a time agreed between the employer and the employee, or, if there is no agreement, at a time determined by the employer.
Accordingly, employers are within their right to require employees to take annual leave during the Lockdown. However, the Chief Director of Labour Relations, Thembinkosi Mkalipi, made the following statement on 26 March 2020:
"In as much as employers are within their rights to insist that employees take annual leave during the lockdown, as the Department, we encourage employers not to request employees to utilise their annual leave credits for the lockdown, but to rather utilise the financial assistance that the department has placed at their disposal through the COVID-19 Temporary Employer/Employee Relief Scheme (TERS) in cases where companies cannot afford to pay employees".
We discuss C19 TERS in more detail in Part 1 of this series, which you can view here.
The BCEA states that an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a six-week period every 36 months, which equates to approximately 30 days of paid sick leave every three years, for an employee who works a 5 day week. An employee is only entitled to the wage that he/she would have ordinarily received for work on that day, meaning that, if an employee would not have worked, and therefore would not have been paid for any day that the employee was on sick leave, the employer is not obliged to remunerate the employee for that day of sick leave. That day, however, for which the employee would not be paid, would not count as a day of paid sick leave for the employee in terms of the BCEA.
Furthermore, in terms of the BCEA, an employer is not required to pay an employee for sick leave taken 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. Of course, employees in self-isolation or quarantine, may not necessarily be sick or injured and would not necessarily qualify for sick leave. For an employee to qualify for sick leave in terms of the BCEA, and accordingly be paid for the time off, he/she would still need to produce a medical certificate that meets the requirements set out in the BCEA or their terms and conditions of employment. An employee in self-isolation or quarantine may very well be willing to work from home.
The employee and the employer would have to come to an arrangement or agreement in this regard. An employer is also not ordinarily entitled to force or require an employee to take a period of unpaid leave. An employer and employee could, however, agree that the employee takes a period of unpaid leave during the State of Disaster and/or the Lockdown.
Amending terms and conditions of employment
Should an employer and an employee reach an agreement, they may agree on any variation of the rights and obligations they each have in terms of the applicable employment contract. The extent to which an employer, however, may unilaterally amend an employee's terms and conditions is a more complicated consideration. Employers are generally not entitled to unilaterally amend an employee's terms and conditions of employment. However, it is generally recognised that, in the absence of an express right contained in the employment contract to the contrary, employees do not have a right to preserve their working conditions completely unchanged, and employers are entitled to unilaterally make changes to workplace practices. Accordingly, distinguishing between a workplace practice and an employee's terms and conditions is important. To make this distinction, consideration needs to be had of all the facts, and legal advice should be sought.
Ordinarily, matters of an employee's leave entitlement (over and above what an employee is entitled to in terms of the BCEA, as discussed above) and remuneration, are matters of right, and therefore cannot be amended unilaterally by an employer. Therefore, despite the State of Disaster and the Lockdown, employers cannot, in the ordinary course, unilaterally change or adapt what employees are entitled to in terms of their contracts of employment.
Employers should obtain legal advice in respect of the options available to them in respect of the Lockdown. Furthermore, it is advisable for employers to keep an open channel of communication with unions and employees in respect of the effects of the Lockdown as well as seek to reach agreement with their employees on, for example:
- reduced pay during the Lockdown period; and/or
- taking annual leave or unpaid leave during the Lockdown period.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.