COVID-19 LABOUR LAW OPTIONS

We are having a number of conversations with our clients with regard to the effect that the effective global shut down has had on the Country and the world with regard to this virus and no doubt viruses to come in future years.  I cannot think of a business that is not going to be negatively affected by this, even the health industry as products shipped from China and Europe will be delayed, but those involved in travel and eventing will be the most seriously affected initially.

Below I have given a number of the frequently asked questions with the advice that is being given by the Department of Labour and the Legal Fraternity.

HEALTH AND HYGIENE

The Department of Labour has issued a directive in terms of our responsibility as employers in answer to the question of what our responsibilities to our employees are.

The Department of Employment and Labour has appealed to employers to use the prescriptions of the OHS Act of 1993 in relation to Coronavirus Disease 2019 COVID-19.

The OHS requires the employer to provide as far as is reasonably practicable, a safe working environment which is without risks to the health of all employees.

Current risk assessments need to be reviewed and updated taking into account the new hazards posed by exposure to COVID-19 in the workplace.

Employers who have not yet prepared for pandemic events are requested to prepare themselves for potentially worsening outbreak conditions.

The Department has developed a COVID-19 guideline which is based on infection prevention and occupational hygiene practices.

It focuses on the need for employers to implement the following measures:

Engineering controls:

Isolating employees from work-related hazards, installing high efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as face shields to provide ventilation

Administrative controls:

Encouraging sick employees to stay at home; minimizing contact among workers, clients and customers by replacing face-to-face meetings with virtual communications e.g. conference calls, skype etc; minimising the number of workers on site at any given time e.g. shift work; discontinuing local and international travel; developing emergency communication plans, including a task team for answering worker’s concerns and internet-based communications; provide workers with up-to-date education and training on COVID-19 risk factors; training workers on how to use and wear protective clothing and equipment

Safe work Practices:

Provide resources that promotes personal hygiene e.g. no-touch refuse bins, hand soap, alcohol-based hand rubs containing at least 70% alcohol, promote regular hand washing

Personal Protective Equipment:

This includes the provision of gloves, goggles, face shields, face masks, gowns, aprons, coats, overalls, hair and shoe covers and respiratory protection.

Employers and workers should use this information to identify risk levels in the workplace and identify additional appropriate control measures. Additional guidance may be needed as COVID-19 outbreak conditions change.  In the event that new information about the virus and its impact is established, plans may need to be modified accordingly.

In the case of suspected exposure, contact the Coronavirus hotline in South Africa – 0800 02 9999

SICK LEAVE

The questions that are being asked of us are:

Does quarantine count as sick leave? 

If a doctor orders it then yes it does, but if a person voluntarily goes into isolation then it does not.  However, if the employer imposes quarantine on its employees, then that should be treated as special paid leave (not annual leave).

If an employee catches Coronovirus at work will it be a WCA Claim?

If the employee’s job is to work with affected or potentially affected people and it was acquired during the course of his work, then it will be a WCA claim.  In other circumstances, we will have to allow the Commission to decide.  It is going to be difficult with certainty to determine where the infection came from.

All other infected and ill employees will be entitled to normal sick leave.

ALTERNATIVE WORKING ARRANGEMENTS

Many staff are requesting permission to work at home, particularly as schools have closed and alternative childcare may not be available. 

How do I monitor staff who want to work from home and what do I do if they cannot work more than 3 or 4 hours a day? 

Companies are going to have to look at this very seriously and improve their monitoring systems so that they can measure work done.  Maybe they need to agree an hourly rate for work done during this period.  It is going to have to be on a case by case basis.

What do I do with staff who cannot work from home?

They need to come to work or take annual or unpaid leave.  We will have to monitor what happens to public transport, but if hygiene factors are looked after, there should not be a problem with continuing to work.

What do I do with staff who choose not to come to work (childcare, immune system compromise, self-isolation etc.)

We have suggested to our clients that they have discussions with their staff about the hygiene factors and the real risks of the virus, but also about the effect that it is going to have on their businesses and seriously introduce the possibility of short time or requiring employees to take some of their annual leave.  They also need to discuss the “no work no pay” principle for people who choose for whatever reason to not come to work.

OPERATIONAL REQUIREMENTS

For many of our clients, they literally have little or no business for the length of time that the global shut down is in place.  The following questions have been asked:

Can I lay-off staff or ask them to take unpaid leave?

The discussion is around what the Department of Labour calls Reduced Working Hours.  There are no guidelines to this in the Basic Conditions of Employment, but employees can apply for UIF benefits whilst on a Reduced Working Hours (Short Time) arrangement.  This is seen as an alternative to retrenchment and the consultation with staff would be in terms of how this could best be arranged.  Each Company would have to look at their particular circumstances.  To be fair and in line with Bargaining Council Agreements, reduced working hour arrangements must be applied to everyone in the business and there should be 5 days notice of the implementation of short time.

Can I retrench?

If the business requires it then you can, but you need to follow the process outlined in section 189 of the Labour Relations Act.  This requires consultation with staff on how to select employees to be retrenched, timing, severance packages etc.  Part of the process is to look at alternatives to retrenchment such as reduced working hours and to ask for volunteers.  It is a difficult process and really should only be considered if the company was contemplating retrenchments prior to the virus outbreak.

LABOUR COURT AND CCMA

We have received information that the Labour Court and the CCMA will effectively be closed.  The CCMA will not be doing any face to face meetings between 18^th March 2020 and 14^th  April 2020. They will only accept e-mailed applications for disputes and have postponed all arbitrations.  They will do telephonic conciliations where possible.  They will assist with large retrenchments, but only if it is held at the company premises and they can be assured that health and hygiene arrangements are adequate.  Otherwise, they are closed.

CONCLUSION

I think it is important not to panic.  80% of infected people will be mildly affected and have very light symptoms.  It’s the 20% who become critically ill that will overload the health system.  We need perhaps to have separate conversations with people who have hypertension, diabetes, HIV, respiratory conditions, cancer, cardiovascular disease, smokers and people with autoimmune conditions and find specific ways to protect them.

Particular advice:  Wash your hands when you go into a meeting and when you leave a meeting. Sterilize your phone with an alcohol-based sanitiser, don’t shake hands, hug or kiss anyone in the workplace.

A good source of information is Alanah Shaikh’s Ted Talk on Covid-19.