COVID – 19 | What are the Legal Implications for Employers and Employees in South Africa

Coronavirus (COVID-19) is on everyone’s minds at the moment, and rightly so. With the World Health Organisation declaring the outbreak a pandemic and the President declaring it a national emergency, it seems that South Africa has come to a stand-still. Amidst the chaos, the implications for employers and employees is one of the biggest concerns we’re facing; what measures should be taken by employers, what forms of leave apply, how will employees be accomodated, etc,.

So to help answer some of these burning questions, we’ve detailed the basics of what employers and employees in South Africa need to know. Even though the situation might change over the next few days and weeks, the following points should be noted. 

Health and Safety in the Workplace 

Despite the low number of confirmed cases in South Africa, employers are obligated to provide a working environment that is safe and without risk to the health of its employees. Our advice is that employers implement the rules and regulations of the Occupational Health and Safety Act 85 of 1993 in full. 

More than this, we also recommend that employers ensure that staff are implementing and adhering to the guidelines given by the World Health Organisation in response to managing the outbreak. These guidelines include: 

  • Wash your hands frequently 
  • Avoid touching eyes, nose and mouth
  • Practice respiratory hygiene
  • Maintain social distancing
  • If you have fever, cough and difficulty breathing, seek medical care early

With that being said, it is advised that employers also have contingency plans and alternative working arrangements in place for employees, outlined below.

Alternative Working Arrangements | Working From Home 

One of the most effective preventative measures to slow the spread of COVID-19 is social distancing, which is why many employers are allowing employees to work from home where possible. This means that employees are still entitled to their full remuneration and benefits as if they were working on-site. 

If, however, an employee refuses to come to work, but has not been granted leave or been asked to work from home, they are not automatically entitled to be paid for the period of absence. Our advice to employers is to come to a sensible agreement with your employees and be mindful of their point-of-views and concerns. 

Granting Sick Leave 

According to the WHO, symptoms of COVID-19 include respiratory infections, fever, cough, shortness of breath and breathing difficulties and in more severe cases, the infection can cause pneumonia, severe acute respiratory syndrome, kidney failure and even death.  

If an employee is experiencing any of these symptoms, the employee must be asked to leave work immediately and get tested for the virus. If the employee tests positive, sick leave rules as per the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) will apply. If the employee exceeds their sick leave and if annual leave has been exhausted, he/she can take unpaid leave, in which case UIF will cover the employee to an extent. 

To avoid employees abusing sick leave, the sick employee must produce a medical certificate as per the BCEA rules and can send a copy to the employer. However, if an employee is in a household where COVID-19 is confirmed, or has come into close contact with anyone with a confirmed case, they would need to provide the relevant medical certificate. We are very aware that this is uncharted territory, so our best advice is that employees and employers both remain vigilant, considerate and mindful in their approach to dealing with the outbreak. 

Some Top Tips From Our Team

If you are an employer and you are struggling to find the best way to follow the recommended guidelines, here are some ideas which we have implemented in the office: 

  • In open work spaces you can rearrange the office space to make social distancing more accessible. Create “safe spaces” where employees aren’t in close contact with each other. 
  • When dealing with the challenges around numbers, consider rotating or rearranging working days/hours. Those who can work on their laptops at home can be in one team and the rest in another. They could alternate. Each workplace will need to work out what best suits their particular circumstances. 
  • Provide every employee with hand sanitizer at the point of entry and wherever appropriate in order to provide a safe working environment. At workplaces where protective gear is indicated, the employer will need to provide the necessary protections. Some employees or employers who are more vulnerable due to pre-existing health conditions ought to be given special consideration. 

If you have any queries or questions, please feel free to contact us! The National Department of Health has also created this website full of useful documents and insights on COVID-19.