LABOUR BRIEF NO. 426
Law firm Webber Wentzel said that the Occupational Health and Safety Act places an express obligation on the employer to maintain a working environment that is safe and healthy.
“On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as it is reasonably practicable,” it said.
“Within the context of Covid-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace.
“Practically, the employer can ensure a healthy working environment by ensuring that the workplace is clean and hygienic, promoting regular hand-washing by employees, promoting good respiratory hygiene by employees and keeping employees informed on developments related to Covid-19.”
Below Webber Wentzel outlined some of the key considerations for both employers and employees should know about when dealing with the Covid-19 coronavirus.
What happens if an employee contracts Covid-19?
Should an employee contract Covid-19, Webber Wentzel said that an employer should apply its sick leave policy to such an employee.
In addition, an employee must obtain a medical certificate and any time out of the office will be considered as sick leave.
“Due to the nature of the illness, an employee with Covid-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.
“The WHO has indicated that a person should be in quarantine for a period of at least 14 days.
“After the quarantine period and even if an employee does not display any symptoms, the employer may nevertheless require the employee to be tested by a medical practitioner and to provide the employer with a medical certificate confirming that the employee can return to work.”
Forced sick leave?
In the case of compulsory quarantine (i.e., quarantine required and enforced by the employer), the employee will not be on sick leave unless a medical certificate has been issued to the employee placing the employee in quarantine, Webber Wentzel said.
“An employer may require an employee to be quarantined if the employee recently travelled to an affected country or if the employee displays symptoms of the illness whilst at work.
“The employer could consider such an employee to be on special paid leave away from the office (depending on the nature of the work performed by such an employee).”
As an alternative to placing the employee on any type of leave, the employer could make it possible for the employee to work from home, Webber Wentzel said.
“The employer may need to put certain measures in place or assist such an employee to work from home if that is the arrangement.
“If it is not possible for the employee to work from home, the employer will not be able to deduct the period of quarantine as sick leave or annual leave as it was made compulsory by the employer.
“This will be a form of special paid leave that is over and above any other type of leave.”
In the case of voluntary quarantine (ie, quarantine at the request of the employee for precautionary purposes), the employee is not sick and therefore, sick leave should not be imposed, Webber Wentzel said.
“If employees are forced to take unpaid leave or annual leave in these circumstances, they may opt not to self-quarantine.
“We therefore recommend that this should also be treated as special paid leave. However, to the extent that the employee who requests self-quarantine can work from home, no leave will need to be awarded.”
Webber Wentzel said that employers must carefully consider the circumstances under which special paid leave will be awarded to employees.
“These circumstances must be made clear to employees. It should be an option of last resort as it may be open to abuse by employees,” it said.
“If the illness spreads across South Africa, the reality for employers is that employees may request to be placed in quarantine to minimise their risk of infection.
“In this instance, the employer will need to consider implementing remote working for employees who can work from home. The guidelines above need to be applied to determine which form of leave will apply.”
Webber Wentzel said that employers should issue clear travel guidelines to its employees on international travel, particularly to countries affected by Covid-19.
“Given the scale of the illness and if it is practical, the employer may elect to place a moratorium on business travel until such time as Covid-19 is contained. If this is not possible, a moratorium should be placed on business travel to affected countries.”
It may be more challenging to regulate personal/holiday travel by employees, Webber Wentzel said.
Employees should be encouraged not to travel to affected countries. Importantly, employees who nevertheless choose do so should not be allowed to immediately return to work after such travel.
“Such employees should be required to self-isolate (compulsory quarantine) for at least 14 days.
“Employees should be informed that they must take all reasonable steps to avoid exposure to the illness which may mean cancelling or postponing international travel until Covid-19 is contained.”
(Chairperson – (CEA – TESD)