By Charlotte Clarke, Associate and Frank Sebatana, Candidate Attorney
On the 5th of March 2020, the National Institute for Communicable Diseases confirmed the first case of COVID-19 in the Republic of South Africa.
President Cyril Ramaphosa has since declared the outbreak of Covid-19 a national state of disaster in terms of the Disaster Management Act. As a result of this, gatherings of more than 100 people have been prohibited, schools have been closed, and international travel has been suspended.
This article will deal with the prospective challenges which will be faced by businesses who are trying to survive the outbreak of Covid-19, as well as the rights and responsibilities of both employers and employees, in terms of the Occupational Health and Safety Act, and the Basic Conditions of Employment Act.
The Occupational Health and Safety Act
The Occupational Health and Safety Act (“the OHSA”) prescribes that every employer is obliged to provide and maintain a working environment that is safe, and without risks to the health of its employees.
This provision is especially relevant where an employee or member of staff is infected by Covid-19, which has been found to be highly contagious. The spread of the disease in close quarters such as a workplace is a risk which employers are required to guard against. Employers who do not ensure the safety of their employees may be subject to claims for compensation from employees who become infected.
During the Covid-19 outbreak, in order to be compliant with OHSA, and the National Health Act, employers are advised to:
- Provide soap and running water free of charge to its employees;
- Make tissues and hand sanitizers available in public spaces at the workplace;
- Actively encourage sick employees to stay home. Should this be impossible, separate sick employees from healthy employees, and from one other; and
- Perform routine cleaning and sanitizing of the workplace.
Employees also have a duty to take reasonable care for their own health and safety, and to obey the health and safety rules and procedures laid down by the employer. Any employee who fails to do this may be subjected to disciplinary action.
The Basic Conditions of Employment Act
The Basic Conditions of Employment Act (“the BCEA”) prescribes that, for every 36 months’ employment, an employee is entitled to an amount of paid sick leave, which is equal to the number of days the employee would normally work during a period of six weeks. For example, if an employee works 5 days a week (Monday to Friday), then that employee is entitled to 30 days sick leave, over the course of 3 years. Note that, while this equates to 10 days of sick leave per year, the employee is able to take the full 30 days sick leave in one year, should this be necessary.
Should an employee need to be quarantined, for any reason, the World Health Organization (“WHO”) has prescribed a quarantine period of at least 14 days. Employers must be cognisant of the fact that the circumstances of the quarantine will affect the employee’s sick leave entitlement.
If an employee tests positive for Covid-19, or has been in close contact with an infected person, they are required to be in quarantine for at least 14 days. Any person who refuses to quarantine, when ordered to do so by a medical practitioner, will be guilty of an offence, and may face a fine or imprisonment.
In the above scenario, the employee will be entitled to paid sick leave, in terms of the BCEA. The employee must produce a medical certificate, issued and signed by a medical practitioner, as prescribed by the BCEA.
An employee may wish to self-quarantine, or self-isolate for preventive purposes, to avoid contracting Covid-19. As the employee is not sick, they would not be entitled to sick leave, in terms of the BCEA. If an employee is forced to take annual leave or unpaid leave in these circumstances, they may opt to not self-quarantine.
The WHO has advised that self-quarantine and social distancing are the most effective methods in preventing the spread of the disease. It is therefore recommended that employees wishing to self-quarantine should be entitled to special paid leave. However, to the extent that the employee who requests self-quarantine is able to effectively work from home, the employee will not need to take any type of leave.
The employer should carefully consider the circumstances under which employees will be allowed to take special paid leave, and should make these circumstances clear to employees. It should be an option of last resort, as it may be open to abuse by employees.
As the employer is obliged to provide a safe working environment, they may require that an employee subject themselves to compulsory quarantine. The employer cannot deduct this quarantine period from the employee’s leave, as sick leave, annual leave, or unpaid leave, as it was made compulsory by the employer.
When deciding to place an employee on compulsory quarantine, the employer should consider whether the employee has recently travelled to high risk countries, has recently been in contact with an infected person, or is displaying symptoms of COVID-19.
The outbreak of Covid-19 is set to have a significant, and potentially lasting impact on our economy, with severe consequences for the viability of businesses, job retention and job creation. Employers should make every effort to ensure the health of their employees, while remaining economically viable.
Measures should be put in place for employees to work from home, wherever possible. Where this is not possible, employers must ensure that employees are aware of measures to be taken, to prevent the spread of Covid-19.