The Occupational Health and Safety Act, No. 85 of 1993 (“the Act”) aims to ensure the wellbeing, health and safety of employees in the workplace. In light of the seriousness of the Covid-19 pandemic, it is important to consider the effects the spread of the virus may have on the South African employer and specifically the risk the virus poses to employees in the workplace. In this regard, section 8 of the Act is of importance as it sets out the duties that employers owe to their employees and is discussed below.
What are an employee’s rights in terms of the relevant portions of the Act?
In terms of section 8(1), ‘Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health and safety of his employees.’ . Whilst South African employers are grappling with the effects of the virus and how best to safeguard its employees and the continued profitability of its business, it is recommended that these requirements set out in the Act (as referred to above) should be implemented strictly by employers. This will avoid potential future claims by employees that they were expected and/or compelled to work in conditions where they remained at risk of being infected by the virus. As Covid-19 can be transmitted by touching surfaces such as telephones, desks, door handles and so forth, employees may try to claim that they have been contaminated by the virus in the workplace, where the employer was legally obliged to safeguard their health, and because of the employer’s failure to comply with the full spectrum of its duties as per the provisions of section 8.
Depending on the nature of the relevant occupation, there are a number of preventative measures that employers can provisionally implement to not only give effect to the labour law rights of employees, but also to put their mind at ease regarding the risk of infection. In this vein, employers should consider promoting teleworking (if employment communication can effectively be done virtually), encouraging employees to work from home, and/or to suspend or limit traveling for work. These are but a few examples of measures that employers could implement and do not constitute a closed list of preventative actions that can be taken. Each individual workplace, and the particular trade in which the employer is involved in, must be assessed by the employer in order to determine the most effective preventative measures relevant to that particular workplace.
The World Health Organization (“WHO”) has also suggested that implementation of the following measures, amongst others, should be considered by employers in order to prevent the spread of Covid-19:
- Sanitizers being available in all common areas;
- Promoting teleworking; and
- Visible display of cleanliness reminders.
In respect of leave in the time of Covid-19, The South African Labour Guide (The Impact of the Coronavirus in the Workplace: by Jan du Toit, SA Labour Guide. https://labourguide.co.za/50-new/most-recent-publications) states that:
“Labour legislation does not make provision for emergency sick or annual leave for instances such as the present. Any absence from the workplace without permission must however still be justified by the employee by means of a medical certificate in the event that the employee has been absent from work for more than two consecutive working days or on the third occasion during an eight-week cycle.”
In as much as it is predominantly the duty of the employer to provide a safe working environment, given the current situation, a duty also rests on employees to minimize the risk of the spread of Covid-19 by taking reasonable care and consideration of those around them. If employees believe that they may be exhibiting symptoms of Covid-19, they may request leave in terms of the employer’s sick leave policy. However, where an employee is not displaying symptoms but is merely seeking to take preventative action by self-isolation or self-quarantine, the employee will not be entitled to make use of accrued sick leave as the employee is not yet sick and he/she will be limited to applying for annual leave or unpaid leave in the normal course and in terms of the employer’s leave policy.
When managing sick leave due to an employee, employers remain obliged to do so in terms of the guidelines on sick leave set out in the Basic Conditions of Employment Act, No. 75 of 1997 (“BCEA”). Section 23 of the BCEA reads as follows:
“The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.”
Therefore, sick leave granted to an employee should be regulated to ensure there is no abuse of the Covid-19 virus as a means to avoid the employee’s employment obligations, as ultimately this may be detrimental to the employer’s business and the employee’s continued employment with the employer.
Following from the above, and where an employee displays symptoms of the virus and has no choice but to subject him-or herself to self-isolation, an employer would on a strict application of the law be entitled to take disciplinary action against such an employee, especially where the employee has utilised sick leave in excess of two (2) consecutive days and where the employee has failed to produce a valid medical certificate relevant to this period. However, given that we are dealing with novel and unforeseen circumstances relating to the current pandemic, we would urge employers to approach these types of scenarios pragmatically and with a view to accommodate these employees and their recovery from infection, as opposed to the employment of a more robust disciplinary approach. Such accommodation by the employer would likely take the form of a special arrangement between the employer and the employee in terms of which the employer could offer extended annual paid, or unpaid, leave to an employee having to self-quarantine. This would naturally only apply in the circumstances where the employee’s reasons for self-containment are genuine and objectively verifiable.
As labour disputes are often decided on factual and substantive considerations, it would be advisable for employers to be seen as actively seeking to assist their employees during these strange times we currently find ourselves in and to avoid disciplinary measures which could be construed as being overly draconian.
The obligation is placed mainly on the Employer to implement precautionary measures to ensure that everyone in the workplace is protected within the ambit of the Occupational Safety and Health Act. If the risk of infection arises in the workplace, the employer should inform all employees immediately and where other employees have been in contact with a co-worker suffering symptoms of the virus, the employer must ensure that these employees are suitable assisted and advised on how best to prevent further contamination. However, employees also bear the onus to act vigilantly and responsibly in these troubled times.
Should further information, guidance or advice on the leave accommodation of quarantined employees, or any other aspect touched on in this article, be required please contact Peter Turner or Lerato Mlambo at our offices and we will gladly assist.