By Novation Consulting
In this article we will look at the employment laws that apply to the employment questions raised by the COVID-19 epidemic.
A word about unprecendented situations
It is not only the coronavirus that is novel. It is putting labour laws to the test in ways that legislators never imagined. This means that there are different interpretations out there and no rule book to play by. The purpose of this article is to guide employers to the right questions and hopefully raise some new sustainable solutions. Please check in with your own legal advisors before you take action.
It is more important than ever for employers to understand:
- their obligation to provide a safe and healthy working environment,
- the importance of a remote-working and succession strategy,
- their employees’ rights to leave,
- ways to reduce your payroll without retrenching people,
- what to do when retrenchment becomes the only option, and
- the importance of a crisis management team.
Three pieces of legislation are relevant here:
- The Occupational Health and Safety Act (creating a safe and healthy environment),
- Basic Conditions of Employment Act (employees’ rights to leave), and Labour Relations Act (retrenchment).
1. Creating a safe and healthy work environment
The Occupational Health and Safety Act provides that employers must take reasonable steps to provide a safe and healthy work environment for their employees. This means that employers must take all reasonable steps to ensure that the COVID-19 virus is not transmitted in the work place. But, this is not just about complying with a law. You should be thinking of ways to support your workforce to keep them as productive as possible in this difficult time.
The South African Department of Labour released their guidelines to deal with COVID-19 at workplaces on 17 March 2020. This is what it says:
The Department has developed a COVID-19 guideline. This COVID-19 planning guidance was developed based on traditional infection prevention and occupational hygiene practices. It focuses on the need for employers to implement the following:
• Engineering controls – isolating employees from work-related hazards, installing high-efficiency 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.hea lth.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 persona l 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 NICO website regularly for updates about recommended PPE.
2. Remote working & succession planning should be your focus
2.1 Working Remotely
You should focus on making plans to make remote work feasible as soon as possible. It is not only the best way to protect your workforce and the country, we may also reach a point when it is no longer optional.
Gallup has conveniently gathered the strategies and policies of a 100 organisations and have summarised them here.
Here are some things to keep in mind:
- Make sure that you have the right tools to enable employees to access the systems, information and networks they need for work. This includes thinking about internet access and data.
- Identify which tools will be used for internal communication and meetings.
- Do all of this while keeping an eye on your information security. Here is a guide by the UK’s National Cyber Security Centre on Home working: preparing your organisation and staff.
- Make sure you have policies and procedures in place that document the new rules.
- Consider what training your employees may need in order to work from home effectively.
- Think about the impact working from home will have on teamwork and mental health. Here is a good article with tips on working remotely, but there are many others!
2.2. Succession Planning
Do you have plans in place to make sure that work can carry on if employees in critical functions cannot work?
The first step is to identify critical functions and then to create contingency plans. Typical plans include:
- identifying other employees who can perform the critical function and preparing them for it by doing ‘cross-training’, and
- identifying individuals outside of the organisation who would be willing and able to step in on short notice (retirees are often a good option!).
3. What type of leave applies when?
Each organisation will have different leave policies suited to their particular needs. In this section we attempt to answer some of your questions relating to leave.
3.1. Can employees demand to work from home?
No. Remote-working policies are at the discretion of the employer.
However, if an employee can work from home, employers will have a hard time justifying why it is reasonable to force them to risk coming into the office or deducting leave if they stay home.
The rest of this section is about employees who have to stay home, but cannot work from home.
3.2. When do employees qualify for paid sick leave for COVID-19?
If an employee has tested positive for COVID-19 (confirmed by a medical doctor) or if they have symptoms and get booked off by a doctor, normal sick leave applies. The employee will be required to produce a medical certifcate from their doctor confirming the employee tested positive for the COVID-19 virus or is too sick to work.
If employees have run out of sick leave, they might be able to claim from the UIF
If the employee is sick for more than seven days and does not have any paid sick leave left, the employee can claim from the Unemployment Insurance Fund.
3.3. What if the employee has not yet tested positive for COVID-19 or exhibited symptoms, but is placed in quarantine?
Many employees who are not ill may have to stay at home nonetheless, because they have:
- travelled to a high or medium risk country,
- been in contact with someone who is sick,
- to look after their children who are home from school,
- pre-existing conditions that make them vulnerable and are staying home as a precaution.
It is also possible that the Government may announce further compulsory measures that make it impossible for employees to come to work.
If an employee has to stay home, but have not yet tested positive and do not have symptoms the employee will not be entitled to take sick leave. Employees will either have to take annual leave or unpaid leave. This is the case even if the employee is ‘forced’ to stay home by the employer’s policies or by the Government.
This will seem unfair to employees and some employers may be in the position to provide more paid leave to support their employees and employers are creating special policies in light of the epidemic. This is recommended in the majority of the guidelines and articles that have been written about this topic. As you consider whether you want to do this, keep these things in mind:
- If you do not offer some form of paid leave, many of your employees will be tempted out of necessity not to disclose that they are ill or that they have been in contact with someone who is ill. This may put the rest of your employees in danger.
- Can you afford doing this for all employees who might claim for special leave? Once you start, you are going to have to be consistent.
- For how long will you be able to afford it? Keep in mind that you may also have to pay to replace that employee if they are in a critical function.
- Before you announce the special arrangement, have you created a policy with clear rules and guidelines? This will help with consistency.
However, the reality is that many employers won’t be able to afford this option. It should also be approached carefully as exceptions will set a precedent that can quickly become too expensive for the employer. Please get advice before adopting this strategy.
4. When does retrenchment become an option?
Section 189 of the Labour Relations Act provides for the dismissal of employees based on ‘operational requirements’. The Labour Relations Acts defines ‘operational requirments’ as the’requirements based on the economic, technological, structural or similar needs of an employer’. Section 189 has specific steps an employer is required to follow, many of which require consultation with impacted employees and considering alternatives. If an employer chooses this route, they must get legal advice as non-compliance with these obligations can have severe consequences.
5. When can an employer withhold or reduce salaries and other types of payment to your employees?
The short answer is, it will depend on the specific circumstances and employers should get legal advice before you consider it.
Here are some guidelines:
- You can offer reduced hours, reduced pay or voluntary unpaid leave to all of your employees in an effort to save the business until the crisis ends. If they all agree (and we have seen examples of that already), you can proceed.
- If the employees do not agree, you can offer them reduced pay as part of the formal retrenchment process which we referred to in the previous section. When this is done as part of the formal process and employees refuse to agree, our courts have held that you can unilaterally change their conditions of service to save jobs.
6. Before you retrench, consider these alternatives
All over the world, other travel and tourism businesses are facing the same issues as ASATA members. Some of these alternatives include voluntary unpaid leave schemes, encouraging workers to take leave at reduced rates, temporary layoffs, re-adjusting work schedules, asking workers to work four-day weeks and requesting workers to take all the paid leave they have available.
7. Establish a Crisis Management Team
It is a good idea to establish a crisis management team to co-ordinate the steps that you take to ensure the health and safety of your workforce. If possible this team should include:
- healthcare professionals who can advise on the measures you put in place and on the physical and mental impact of the epidemic on your employees;
- representatives from your HR department who are responsible for health and safety, employee wellness and industrial relations;
- a learning and development specialist who can advise on any training which employees may need on the new working environment;
- health and safety representatives from your workforce who can:
- give you practical advice (what works, what doesn’t, what else your employees need);
- communicate with other employees on what they should and shouldn’t do; and
- help you monitor the physical and mental impact of the epidemic
- a labour law specialist who can advise you on industrial relations and employee rights;
- a communication specialist to make sure that your crisis communications to your employees are clear and reassuring.
8. Guides and Articles
For those who want to read up some more about this topic, here are the guides and articles that we found useful:
- Webber Wentzel’s coronavirus booklet Covid-19: Flagging significant commercial and legal issues
- Cliffe Dekker Hofmeyr’s The Employment Survival Guide – COVID-19
- Gallup reviewed 100 policies and wrote a report called COVID-19 Strategies and Policies of the World’s Largest Companies