By Lauren Squier, Associate and Phathutshedzo Ratshitanga, Candidate Attorney
We are now well into the national lockdown in the fight against COVID-19. A recurring question within this period has been whether employers can expect their employees to leave the safety of their homes and keep working for them and the possible consequences that can be incurred by the employer in requiring this of their employees
Before you compel your employees (including but not limited to your domestic worker, caretaker or gardener) to attend to work during these risky times, you should be aware of the potential consequences that you might face as a result. This article takes a look at the Compensation for Occupational Injuries and Diseases Act (“COIDA”) (“the Act”) as it relates to employees compelled to attend work during the initial lockdown and period thereafter.
This article specifically addresses live-in domestic workers, gardeners and caretakers that would not be deemed as an essential service (as outlined by the Regulations to the Disaster Management Act 57 of 2002) but would be able to continue with their work by virtue of their live-in arrangement. However, is equally relevant to other occupations where employees are being compelled to attend work by their employer during this time of pandemic. It is important to peruse the Act, or consult a specialist, so as to determine whether the provisions will apply to your employees, or if, like domestic staff, they are excluded from cover.
The Act allows for employees to be compensated by the Compensation Fund (“the Fund”) for injuries and infectious diseases suffered or contracted in the course and scope of their employment. Importantly, where an employee does not qualify for compensation by the Fund, because they do not meet the requirements prescribed by the Fund, the employer can be held personally liable by their employee.
COIDA as it relates to COVID-19
COVID-19 has been classified as an occupationally-acquired disease in terms of the Act. The position of the Fund in relation to instances of occupationally-acquired Covid-19 has been confirmed in a notice issued by the Compensation Commissioner on the compensation for occupationally-acquired COVID-19.
The notice applies to employees, defined as such by the COIDA, who acquire COVID-19 when acting in the course and scope of their employment with their employer, through exposure to a confirmed case(s) of COVID-19 in their workplace, or after an official trip to a high-risk area.
Affected employees must meet certain requirements outlined in Section 65 of the Act to benefit from the Fund. Once employees meet these requirements, the Fund will then compensate those employees who have been disabled (temporarily) from working as a result of contracting COVID-19 for a period limited to 30 (thirty) days from the date of formal diagnosis. Benefits include medical aid and will extend as far as death benefits in the case of the death of an employee.
For an employee to be entitled to compensation by the Fund, their diagnosis with COVID-19 must meet the following requirements which are set out in the notice and which reiterate Section 65 of the Act: –
- Occupational exposure to a known source of COVID-19;
- A reliable diagnosis of COVID-19 as per the WHO guidelines;
- An approved official trip and travel history to countries and/or areas of high risk for COVID-19 on work assignment;
- A presumed high-risk work environment where transmission of COVID-19 is inherently prevalent; and
- A chronological sequence between the work exposure and the development of symptoms.
It is important to note that the definition of employee, as provided for in COIDA, expressly excludes “a domestic employee employed as such in a private household” and, accordingly, should your domestic worker or gardener contract COVID-19 whilst acting in the course and scope of their employment within your household, then you, as their employer, may be liable for all medical expenses and damages suffered as a result of them contracting the virus. This liability might arise from labour law, contract law or delict law.
Issues that could arise if your employee contracts COVID-19 during their course of employment with you can be complicated. If your employee is “a domestic employee employed as such in a private household” and you have instructed or allowed them to reside at your home and/or keep working for you during the lockdown, you should consider these potential consequences. The same will apply even if you sent them home to quarantine with their families to return to your home for work after the lockdown. Until the country is cleared from the threat of COVID-19, it is important to be mindful to take precautions to ensure that your employee(s) do not become infected during the course and scope of their employment with you, as this could result in legal liability for yourself as their employer.
This is only a very brief summary of a very complex area of the law. Should you have any questions you need answered, we suggest that you approach us, as misunderstanding the law could result in you not obtaining the results that you wish.