COVID-19 Duties of employers and employees in the workplace

Introduction

While the recent confirmation that COVID-19 has finally reached South African shores has caused widespread panic amongst employees and employers alike, it is not the first time that the South African workplace has faced a health scare, nor is it likely to be the last.      Admittedly the virus seems to be more easily transmitted than most that we have previously experienced, but at the time of writing this article, the percentage of fatalities in healthy individuals is still mercifully low.   

Our existing employment legislation provides a comprehensive framework within which employers and employees are required to conduct themselves to safeguard health and safety.  

Unfortunately, in the panic and confusion largely fueled by easy access to social media platforms and carefully crafted sound bites, common sense seems to have gone out the window.    Employers and employees must work together if businesses are to emerge intact on the other side of the COVID-19 challenge, which comes at a time when most employers can least afford more down time and employees cannot afford to lose their jobs.  

Employer

Section 8 of the Occupational Health and Safety Act 85 of 1993 (OHSA) requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risks to the health and safety of its employees. 

This duty includes:

(a) taking steps to eliminate or mitigate any hazard or potential hazard, before resorting to personal protective equipment; 

(b) providing information, instructions, training and supervision that may be necessary to ensure the health and safety of employees at work; and 

c) enforcing such measures as may be necessary in the interests of health and safety. 

Section 9 extends these duties towards persons other than those in employment affected by the employer’s activities.

The Facilities Regulations, published under OHSA, inter alia  require employers to supply (free of charge) a towel to every employee for their sole use or disposable towels or hot air blowers or clean portions of continuous cloth towels, at washbasins; soap or a similar cleansing agent; and running hot and cold or premixed hot and cold water for washbasins.

The Environmental Regulations issued in terms of the OHSA require every employer to ensure that every workplace in its undertaking is ventilated in such a way that the air breathed by employees does not endanger their lives.  Where natural or mechanical ventilation is not practicable, or where there is a danger of unsafe air in the breathing zone of an employee, the employer must provide the employees (and must ensure that they correctly use) respiratory protective equipment of a type that reduces exposure. In addition to providing appropriate ventilation where necessary employers must also ensure that existing mechanisms, such as air-conditioning units, are safe and do not expose the employees to the risk of infection.

The General Safety Regulations also published under the OHSA prohibit an employer from allowing a person to enter a workplace where the health and safety of such person is at risk and permit the employer to impose rules on their employees or place conditions on entry to the premises to ensure a safe working environment.  These rules and conditions may vary depending on each employer’s specific workplace and workforce, but could, for example, include requiring disclosure of any recent international travel by the employee. When developing and implementing rules or conditions for entry to the workplace, the employer must ensure that these are reasonable and objectively justifiable in relation to their purpose and do not unreasonably invade the employees’ privacy.  

Employers need to strike a correct balance in implementing ‘reasonably practicable’ measures that are appropriate for managing and protecting health and safety in the workplace.  If taken too far these measures may be challenged by employees on the grounds of unreasonableness. On the other hand, if not taken seriously enough, an employer may be found to be negligent and held liable for the consequences. 

Section 23 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) stipulates that any employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days 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.   In terms of section 22 of the BCEA, in every period of thirty-six months’ employment, the employee is entitled to paid sick leave equal to the number of days the employee would normally work during a period of six weeks. An employee who ordinarily works five days a week would therefore be entitled to thirty days paid sick leave in a thirty-six-month cycle.   Where an employee is suspected of being infected by the virus and is placed in isolation or has been instructed by a medical practitioner to self-isolate the employer is obliged to pay the employee for this time off work on condition that the employee produces a medical certificate and has sufficient paid sick leave still due to him/her. Where the employee produces a medical certificate as required, but no longer has paid sick leave to his/her credit, the employer is not obliged to pay the employee for this time off but may also not sanction the employee for not attending work. Where sick leave has been exhausted the employee will be entitled to claim UIF for absences in excess of fourteen (14) days, depending on the duration of the absence from work, and the employer should assist the employee where reasonably possible to apply for this.   

Employees

Section 14 of OHSA imposes a variety of duties on the employee at work.  These duties include:

(a) taking reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;

(b) co-operating with the employer to enable the employer to comply with any duty or obligation imposed on it by OHSA;

(c) carrying out any lawful order given to the employee, and obeying the health and safety rules and procedures laid down by the employer, in the interest of health and safety; and 

(d) reporting as soon as practicable any situation which is unhealthy and unsafe and which has come to the employee’s attention. 

Employees who act in contravention of an employer’s health and safety rules or who disobey reasonable and lawful instructions in this regard may be subjected to disciplinary action and could potentially face dismissal depending on the circumstances surrounding their actions. 

Employees who stay off work for an extended period without a medical certificate or permission from their employer may also be subjected to disciplinary action in addition to not being paid for this period of absence.

Employers and employees are encouraged to communicate regularly with each other to avoid any   confusion or uncertainty regarding acceptable and unacceptable conduct and practices within the workplace.  After all, prevention is better than cure….

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