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CORONAVIRUS PAYMENTS AND RULES

Employers Obligations

Section 8 of the Occupational Health and Safety Act (Act 85 of 1993) prescribes under the general duties of employers to their employees, the following: Section 8(1) stipulates that the employer is obligated to provide and maintain a workplace that is safe and without risk to the health of their employees. As a result the company needs to implementing the following policy. Section 8(2)(b) requires steps such as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard before resorting to personal protective equipment (PPE). In accordance with Section 8(2)(d) of the OHS Act it is important to note that before the implementation of control measures, current risk assessments need to be reviewed and updated, taking into account the new hazards posed by exposure to COVID-19 in the workplace.

A COVID-19 guideline was developed by the Department of Labour. The guideline was developed based on traditional infection prevention and occupational hygiene practices. It focuses on the need for employers to implement the following control measures:

The obligations of an employee include:

  •  the duty of good faith,
  • the duty to attend work regularly and reliably,
  • the duty of loyalty,
  • the duty to put the employers’ interests before their own during working hours,
  • in certain instances, that duty extends beyond working hours,
  • the duty of honesty,
  •  the duty of diligence,
  • the duty to obey lawful and reasonable instructions.

How does COVID-19 spread

The virus spreads in a similar vain to the flu: When an infected person coughs, sneezes, or touches other infected people and / or infected surfaces and / or objects, the virus enters the body when you touch or make contact with your nose, mouth and / or eyes. It also spreads when an infected person is in close proximity (1-2 meters) with another person. If you are feeling short of breath or have difficulty breathing seek health care urgently. It is a respiratory infection and not a stomach infection.
Four out of five people will have a mild illness and recover without treatment. The elderly and those with underlying health conditions have an increased risk of severe illness. Cases of the virus in children are rare.

In terms of Schedule 8: Code of Good Practice Dismissals;

1) an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered.
2) The factors to be taken into account in considering alternatives to dismissal include:

  • the seriousness of the illness; and 
  • the period of absence; and 
  • the nature of the employee’s job; and
  • whether a temporary replacement may be secured.

3) The ill employee should be given an opportunity to make recommendations as well.
4) Only once all these processes have been followed and no alternative to dismissal found, may an employer consider dismissal.

There is current case law available Eskort Limited v Mogotsi [2021] JR1644-20 (LC) where an employee reported for duty well knowing he had Covid19. This employee was dismissed as a result of him not adhering to company policies and procedures as well as Covid19 Regulations that were in place.

The employee in question was employed as an assistant butchery manager from May 2018. He was in a relatively senior position.

The employer had various Covid-19 policies and procedures in place. The employee was a member of the in-house ‘Coronavirus Site Committee’ and his responsibilities included putting up posters through the workplace and informing other employees on what to do in the event of exposure to the virus.

The employee travelled to and from work daily with a colleague. On 1 July 2020, his colleague fell ill and tested positive for Covid-19 on 20 July 2020. When his colleague fell ill, the employee conceded that he also started experiencing Covid-19 symptoms (chest pains, headaches and coughs). Despite being informed by management to stay home, he reported for duty on 10 July 2020.

On 5 August 2020, the employee took a Covid-19 test, which came back positive on 9 August 2020. Although he was awaiting his test results (and even after he received a positive result), the employee nevertheless reported to work on 7, 9 and 10 August 2020.

In its subsequent investigation, the employer also discovered (through video footage) that on 10 August 2020, the employee hugged a fellow employee who had a heart operation five years earlier and had recently experienced post-surgery complications. He was also observed walking around the workplace without a mask. After contact tracing, a number of employees had to be sent home in order to self-isolate.

The employer charged the employee with:
Gross misconduct that he failed to disclose his status being positive for Covid19 and that he attended work and failed to follow Company health and safety protocols.

After holding an internal disciplinary hearing, the employee was dismissed.

The employee lodged an unfair dismissal dispute at the CCMA, which found his dismissal to be substantively unfair. The CCMA found that although the employee acted in a manner that was “extremely irresponsible”, the employer’s disciplinary code and procedure stated that the appropriate sanction for gross negligence was a final written warning. The CCMA found that the employer did not follow its own disciplinary code and procedure and the employee was reinstated. The employer then took the CCMA arbitration award on review to the Labour Court.

Labour Court Judgment

The Labour Court said it was strange that the CCMA ruled the dismissal was substantively unfair, while it also found that the employee’s conduct was extremely irresponsible and grossly negligent.

The Labour Court furthermore held that disciplinary codes and procedures are not prescriptive. They should be interpreted as guidelines, particularly when determining the appropriate sanction. When considering an appropriate sanction, it is important for the commissioner to make an assessment based on the nature of the misconduct. If the nature of the misconduct is such that it renders the continued employment relationship no longer sustainable, dismissal is an appropriate sanction.

The Labour Court found that the commissioner failed to consider all circumstances when considering an appropriate sanction. The dismissal of the employee was declared to be substantively fair.

The Labour Court questioned whether dismissing the employee as well as whether the employer’s “fancy” Covid-19 policies and procedures alone were sufficient to curb the spread of the pandemic. The Labour Court also questioned how, in the midst of this pandemic, the employer could allow its employees to walk around the shop floor without a mask as well as hug other employees.

Ultimately, the Labour Court implored employers to consider whether existing health and safety protocols were being taken seriously by its employees, since they are meaningless if they were merely “in place and on paper”.

This judgment is significant for both employers and employees, as it highlights a need for employers to introspect and determine whether existing health and safety protocols are being followed in the workplace. While Covid-19 has become a reality for many employers, and has, to an extent, become the new norm for businesses, it is important that employers do not lose sight of the various Covid-19 health and safety obligations which are contained in the Level 1 Disaster Management Regulations, read together with the directions and guidelines issued by the Department of Employment and Labour and the Department of Health.

Under the Level 1 Disaster Management Regulations, “employers must ensure that health protocols and social distancing measures are followed in the workplace in place and not merely just on paper.”

These protocols are detailed in the consolidated directions on occupational health and safety measures that were issued by the Department of Employment and Labour on 28 September 2020.

There are also various guidelines issued by the Department of Health which offer advice to employers on how to manage certain issues in the workplace – e.g. the return to work for vulnerable employees, submission of Covid-19 data to the Department of Health, guidelines on symptom monitoring and management of Covid-19-positive employees and cleaning and decontaminating workplaces.

Employers who have not already amended their disciplinary codes and procedures, urgently need to revise the codes in order to make provision for instances where an employee fails to adhere to Covid-19 health and safety protocols in the workplace.

Considering retrenchments due to the impact of the coronavirus

1) Section 189 of the Labour Relations Act 66 of 1995, applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. If an employer is severely affected by operational factors due to the virus the employer can consider retrenchment but must ensure that he follows the prescribed process. It needs to be considered as a rational commercial or operational decision, it requires common sense and logic. “Operational requirements” are defined as requirements based on the economic, technological, structural or similar needs of the employer.

Retrenchment is a no fault dismissal process on the part of the employee. In light of the coronavirus discussion, the virus cannot be used as an opportunity for an employer to terminate the employment of ill employees. The virus or infected employees must therefore not be used as a selection or alternative criteria.

Coronavirus is unlikely to trigger an operational need. The recommended period for recovery/isolation is 14 days – this in itself cannot be used as a trigger for initiating retrenchment proceedings. However, should a large number of employees be infected, an operational need could possibly arise in future.

 

If employees refuse to come to work

Employees remain obligated to come to work, unless instructed otherwise by their employers. Employees who refuse to come to work must have a valid reason for their absence. The mere presence of the Coronavirus in South Africa does not constitute a valid reason to stay away from work.

Employees, who stay away from work without a valid reason, may face disciplinary action. Employees are encouraged to speak to their employers about their concerns before making a decision to stay at home, without authorisation.

Employees who refuse to attend work as scheduled, this action will constitute unauthorised absenteeism and it will be unpaid.

Working from home

Employees do not have a right to work from home. Working from home may be considered by employers but should not be implemented by employees without the employer’s written consent. Working from home may be permitted at the discretion of the employer. This is not always a viable alternative or solution but could be considered in certain instances such as a corporate environment.

Should employers consider this as an option, clear guidelines need to be set for these employees. This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance from the office alternatively at their normal place of residence.

Restriction of an employee’s professional or personal travel plans

Professional travel plans may be changed or prohibited. However, an employer does not have the right to dictate whether an employee may travel during his/her annual leave or on weekends. Employers may, however, require their employees to disclose if they have travelled to any specific locations in order for the employer to assess the risk to other employees and / or customers.

Different types of Leave to be considered

  • Vaccination

An employer is obligated to give its employees paid time off in order to receive the vaccination. In terms of the BCEA an employee is not required to provide a medical certificate in the event the employee is off from work for two days or less due to illness. The employer may accept a Covid-19 vaccination certificate issued by an official vaccination site in lieu of a medical certificate. The employee may also be required to provide proof of an appointment to be vaccinated.

Time off should not be regarded as sick leave. A distinction must be made between an employee who goes for a vaccination and is not too ill to work versus an employee who is ill. It should be regarded as a form of ‘special leave’.
As SA gears up to vaccinate more citizens against Covid-19, there are growing concerns about whether employers can force their employees to receive the vaccine.

Businesses are gearing up to administer vaccines to their employees after the labour department reached an agreement at NEDLAC to use workplaces in the phased vaccine rollout.

The amended Occupational Health and Safety (OHS) in the Workplace Direction states that while employees can refuse based on constitutional grounds to be vaccinated, employers can enforce mandatory vaccination on grounds that they want to offer a safe working environment. To do so, they would need to follow these steps.
Employers can identify employees at risk of transmission or exposure to Covid-19 based on their age and underlying conditions.

At present Employees can decline to get vaccinated on grounds of bodily integrity in terms of Section 12(2) and the right to Freedom of Religion, Belief and Opinion cited in Section 13 of the constitution. Medical reasons refer to an immediate allergic reaction to a dose of the vaccine.

Business4SA states the amended directive does not prohibit employers from dismissing workers who refuse the vaccine, but legal advice needs to be taken given the complexities of such a dismissal.

Taking the Covid-19 vaccine is not compulsory in South Africa but citizens who are eligible are encouraged to do so.

Companies should find a reasonable resolution that accommodates all parties when employees refuse to be vaccinated on medical or constitutional grounds.
Employers must require employees to disclose when they are experiencing Covid-19 symptoms or when they have tested positive. Employers are also required to explain the nature of the vaccine administered.

Paid time off due to side effects

If an employee suffers side effects as a result of the vaccination, the Direction states that ‘the employer must in accordance with section 22 of the BCEA place its employee on sick leave.” Paid sick leave provides that the employee produces a medical certificate issued by a medical practitioner for a period longer than two days.

A claim may be lodged for compensation in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA).

Isolation/quarantine – contact outside place of employment:

If an employee had close contact with someone that tested positive for Covid19 other than at their place of work, the employee must self-isolate for 10 days after the last contact with the infected person. Annual leave applies in these instances and if it is depleted unpaid leave will apply.

If an employee has tested positive for Covid19, the employee must self-isolate for 10 days after their symptoms commence. This period of isolation will be unpaid.
The employee is however entitled to be paid sick leave only with a medical certificate issued by a medical practitioner stating that the employee is unable to perform her/his normal duties. Only once the employee provides the medical certificate will the employee qualify for sick leave, otherwise it will be unpaid leave.

If an employee self-isolates as a precaution at their own behest, the absence should only be paid provided that the company is satisfied that the reason for doing so relates to a reasonable concern in respect of COVID-19. The employee will then be required to submit a medical certificate, issued by a registered medical practitioner, stating that according to his professional opinion that the employee is not able to perform their normal duties.

During the period of isolation, the employer can expect the employee to perform their normal duties if possible. If the employee performs their normal duties while at home, their time working at home will be paid for.

The employer can conduct spot visits to the employees’ residence and or place of isolation, during the term of sickness to ensure that the employee is in fact under quarantine at his/her normal place of residence.

If sick leave is depleted the employee may claim from UIF if the period of sick leave is longer than 7 days.

Isolation/quarantine – contact at place of employment:

If an employee was in close contact with someone at work and the employee has been diagnosed with having contracted Covid19, and Covid-19 was contracted during the course of employment the employee must self-isolate for 10 days after the last contact.

The employee may then claim compensation under the Compensation for Occupational Injuries and Deceases Act (COIDA). Sick leave will then not apply. It is the responsibility of the employee to inform the employer in writing that he has contracted Covid19 at work. The employee must request the employer to register a claim at COIDA. Only diagnosed (tested positive) cases are covered by COIDA.
During the period of isolation, the employer can expect of the employee to perform their normal duties where possible. If the employee performs their normal duties while in isolation at home the time at worked at home will be paid for.

The employer must assess that worker’s exposure in accordance with the Department of Health’s guidelines to ascertain whether the exposure carries a high or low risk of transmission between the workers.

Low Risk:

The employer may permit the exposed workers to continue working using a cloth mask complying with standard COVID-19 precautions. The employer must monitor the workers symptoms for 10 days from the first known contact/exposure.

High Risk:

  • The worker must remain in quarantine for 10 days;
  • The period of quarantine is deemed paid sick leave only with a medical certificate; and
  •  If the worker remains asymptomatic, no further testing is required prior to the return to work

The employer must ensure sufficient quantities of hand sanitizers are available based on the number of workers or other persons who access the workplace. If the worker interacts with the public, the employer must provide the worker with sufficient supplies of hand sanitizer at their worker station for the worker and the client. All work surfaces and equipment need to be disinfected before work commences, regularly during the working period and after work ends. All areas such as lavatories, common areas, door handles, shared electronic equipment need to be sanitized regularly.

  • Sick leave
  • Sick leave entitlement

In terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA), the “sick leave cycle” refers to the period of a 36-month cycle of employment with the same employer immediately following an employee’s commencement of employment.

During every sick leave cycle, an employee is entitled during the first six months of employment to one day’s sick leave for every 26 days worked.

During every sick leave cycle, an employee is entitled, after six months employment, to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks. For an employee who works five days a week it equates to 30 days’, for an employee who works 6 days a week it equates to 36 days’ sick leave, per 36 months of employment. An employee is not required to submit a medical certificate for one or two day’s incapacity.

  • When sick leave is exhausted

An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted. However, authorised unpaid leave can be considered.

In those instances, the employee must claim illness benefits in terms of the Unemployment Insurance Act. In terms of Chapter 3, part C, a contributor is entitled to the illness benefits contemplated in the Act for any period of illness if, inter alia, the contributor is unable to perform work on account of any illness.

  • Payment for sick leave

Subject to section 23 of the BCEA, an employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and
b) on the employee’s usual pay day.

When is an employer not required to pay sick leave?

In terms of section 23 of the BCEA, an 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 or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate issued by a registered medical practitioner stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.

Requirements of a medical certificate

The Basic Conditions of Employment Act section 23 states:
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period 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 or injury.

From this section 23 of the BCE Act it is clear that there are two requirements in order for a medical certificate to be a valid medical certificate and it must state that;

1) The employee was unable to perform his or her normal duties as a result of illness or an injury.
2) The outcome must be based on the professional opinion of a registered medical practitioner. A certificate is not valid if it states that the practitioner “saw the patient” or “was informed by the patient” it is not considered to be a valid medical certificates since the practitioner did not declare in his or her professional opinion that the employee was unable to perform his or her normal duties as a result of illness or an injury. Such certificates are merely an indication that the practitioner merely saw the patient, in example a check-up, or that he was merely informed that the patient was unfit for duty.
(2) The medical certificate must be issued and signed by a medical practitioner.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.

From this section 23 of the BCE Act it is clear that there are two requirements in order for a medical certificate to be a valid medical certificate and it must state that; 1) The employee was unable to perform his or her normal duties as a result of illness or an injury.
2) The outcome must be based on the professional opinion of a registered medical practitioner. A certificate is not valid if it states that the practitioner “saw the patient” or “was informed by the patient” it is not considered to be a valid medical certificates since the practitioner did not declare in his or her professional opinion that the employee was unable to perform his or her normal duties as a result of illness or an injury. Such certificates are merely an indication that the practitioner merely saw the patient, in example a check-up, or that he was merely informed that the patient was unfit for duty.

A medical practitioner is described in the definitions of the Act as: ‘‘. . . . a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act No. 56 of 1974);” In terms of the above mentioned Act. Only the following professionals are considered to be medical practitioners:

1) Medical practitioner (Doctor with MBChB degree) that is registered with the Health Professions Council of South Africa.
2) Dentist that is registered with the Health Professions Council of South Africa.
3) Psychologist with a Master’s Degree in Research, Counselling or Clinical Psychology that is registered with the Health Professions Council of South Africa.

The above mentioned Act further makes provision for practitioners registered under the Allied Health Service Professions Act 63 of 1982. Practitioners described in this Act must be registered with the Allied Health Service Professions Council. Practitioners registered at this council may also issue medical certificates and must be accepted by employers as proof of incapacity in terms of the Basic Conditions of Employment Act. Employers do not have to accept certificates from traditional healers unless they are bound by a collective agreement to accept such certificates. Clinic certificates are also not included to issue certificates except if a registered medical practitioner, signs the clinic certificate.

  • Annual leave

During their first year of employment employees are entitled to one day for every 17 days worked.

An employee who after one year of employment with the same employer is entitled to 21 calendar days per annum annual leave or 18 working days if the employee works a 6-day week or 15 working days if they work a 5-day week – it equates to three weeks in total. An employer must allow an employee to take his leave from 12 months up to 18 months of employment.

The company cannot prescribe what the employee may do during their leave, but can request that the employee continue to prioritize his/her health and safety so as to limit the risk posed to others on return to the work place. The employee is not allowed to perform his normal duties during his annual leave and annual leave can only be paid to the employee on termination of service. An employee is not required to apply for annual leave during a period of illness with proof of their illness or during a Public Holiday.

  • Special leave

If the employee has exhausted his/her annual leave including sick leave the company retains the right to allow paid or unpaid special leave at its sole discretion after taking into account, all the relevant circumstances. If the period of unpaid special leave is more than 7 days you may apply to the Unemployment Insurance Fund if your leave is unpaid, to receive illness benefits in terms of Chapter 3, Part C of the UIF Insurance Act, in respect of this period of unpaid leave.

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