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employment | 16 Mar 2020
BY Peter le Roux AND Lauren Salt
ENSight

employment


South Africa: the coronavirus (COVID-19) | employment law update following President Ramaphosa’s speech

In light of South African President Cyril Ramaphosa’s speech on the country’s response to the coronavirus (COVID-19) last night, there are a number of new questions that we anticipate will be plaguing employers.

Given all the restrictions on travel and gatherings, should employers close their doors and send employees home?

No. An employer has the obligation to provide, as far as is reasonably practicable, a safe and healthy working environment. The duty to provide a healthy and safe workplace is not an absolute duty – an employer must only take such steps as are reasonably practicable to ensure a safe and healthy workplace.

Employers will need to do a risk assessment as to whether their workplace is safe and healthy and whether any steps implemented in order to mitigate the risk of COVID-19 spreading in the workplace are sufficient. What is reasonably practicable will depend on the circumstances of each individual employer. Employers should make an assessment of:

  • the severity of the risk to health and safety;
  • the availability and suitability of ways to mitigate or remove the cause of the risk; and
  • the cost of mitigating or removing the risk against the benefit derived therefrom.

This assessment must be made in the light of the knowledge reasonably available at the time that the risk is being assessed. This will be an ongoing process.

In light of the speech, are there any steps or additional steps an employer should now be taking?

In addition to the steps employers may have already taken, we suggest that employers communicate the key messages from the president’s speech yesterday, 15 March 2020, and the release from the president’s desk today, 16 March 2020, to their employees and any other relevant parties. Employers should stay abreast of the communiques from the president’s office and the various ministerial departments.

With regard to schools (and “holiday” schools) closing, employers should consider accommodating employees whose children are at home and who do not have carers. Alternative working arrangements may include working from home or staggered working hours.

What steps should the employer already be considering or implementing?

Although much will depend on the circumstances of each employer, if employers have not already taken steps they should consider implementing the below:

  • Briefing employees on the dangers of COVID-19 and what steps they should take to mitigate the risk of exposure to COVID-19.
  • Pointing out to employees that they also have a duty to ensure that they do not act in such a way as to put their own health, and that of their fellow employees, at risk.
  • Providing facilities to ensure that employees are able to maintain appropriate standards of hygiene.
  • Monitoring whether employees have contracted COVID-19 or have been exposed to others who may have contracted the virus and implementing an action plan or procedure to manage this.
  • Taking steps to maintain “social distance”, between employees, such as not holding employee meetings unless absolutely necessary, remote working, limiting, as far as is practicable, business travel and the like.

Can employers send their employees for tests to determine whether they have the virus?

Yes. An employee can, in appropriate circumstances, be required to undergo testing for the virus. For example, if the employee has been exposed to people who have contracted COVID-19 or if the employee manifests the symptoms associated with the virus, a mandatory test, in these instances, would be permissible.

Can employers require employees to work from home?

Yes. An employee can, in appropriate circumstances, be required to work from home. In this case, the employee will generally be entitled to be paid.

Factors to be taken into account when requiring an employee to work from home could include an assessment of whether the employee has the requisite tools to perform their work at home (ie, electricity, an internet connection, a printer, if required, etc).

If employees cannot work from home, can they nevertheless be sent home?

Yes. An employee may, in appropriate circumstances, be told not to report for duty and to stay at home. In this case, the employer may be required to pay the employee. Various factors will need to be taken into account, including whether the employee has contracted the virus or is symptomatic, whether the employee has sick leave available, etc.

Where the virus has impacted the employer’s business, what alternatives should be considered before retrenchment? Even if retrenchments are not yet considered, in light of the potential impact on the business, how do employers save costs during this time?

  • An employer may be entitled, subject to certain requirements, to require an employee to take leave that has accrued in terms of the Basic Conditions of Employment Act, 1997. In the case where the employee is entitled to leave in excess of the statutory minimum, the conditions on which such leave is granted would apply.
  • An employer can implement a “lay-off” scheme. Some collective agreements make provision for “lay-offs” in certain circumstances, but where there is no collective agreement in place, this does not preclude an employer from exploring this as an option.
  • An employer and employee may agree to changed terms and conditions of employment, ie, reduced remuneration. Other measures could include amending working time or shift patterns. For instance, working compressed work weeks (ie three 12-hour shifts per week), implementing short time or job sharing in some form.

It may be necessary or advisable to negotiate, and agree these changes with a union that represents the employee(s) or the employees themselves in the absence of a union. This will be the case, for example, if the employees’ terms and conditions of employment are regulated in a collective agreement. However, care should be taken not to breach the Basic Conditions of Employment Act.

Can COVID-19 lead to retrenchments?

Conceivably, yes. The virus may have a crippling effect on an employer’s business, depending on the nature of the business. In appropriate circumstances, an employer will be entitled to dismiss employees on the grounds of its operational requirements. However, this will have to be preceded by a consultation process.

Dismissals will only be permitted as a last resort, after all other ways of avoiding retrenchments have been considered and applied or rejected.

The above are general guidelines, please consult your legal advisors for specific advice.

For more information, please contact:

Peter le Roux

Employment | Executive Consultant

pleroux@ENSafrica.com

+27 83 626 2909

Lauren Salt

Employment | Executive

lsalt@ENSafrica.com

+27 84 509 6494

 

COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.

No information provided herein may in any way be construed as legal advice from ENSafrica and/or any of its personnel. Professional advice must be sought from ENSafrica before any action is taken based on the information provided herein, and consent must be obtained from ENSafrica before the information provided herein is reproduced in any way. ENSafrica disclaims any responsibility for positions taken without due consultation and/or information reproduced without due consent, and no person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against ENSafrica and/or any of its personnel. Any values, such as currency (and their indicators), and/or dates provided herein are indicative and for information purposes only, and ENSafrica does not warrant the correctness, completeness or accuracy of the information provided herein in any way.