COVID 19 – EMPLOYMENT CONSIDERATIONS

The current COVID 19 pandemic created new and unforeseen issues the world over.  No company, business or enterprise is free from the cascading effects caused by the Coronavirus across the world.  The unforeseen difficulties arising as a result of the pandemic resulted in various questions arising specifically in relation to South African Labour Laws relating to aspects not specifically covered thereby.  Such issues include the obligations on employers and / or employees as to how the positive diagnosis of an employee with COVID 19 should be dealt with and the application of the general principles of leave as it applies to employees who’ve tested positive for COVID 19 during and after the lockdown period.

Notwithstanding this, there are some basic guidelines which are useful in these instances and will be of assistance to employers in South Africa.

While there is no express duty on any person to report their COVID 19 status to anyone, there are provisions in the Regulations issued in terms of the Disaster Management Act 57 of 2002 (“the Regulations”) which may impact the employment relationship and place a duty on employees to inform employers of their status.  In terms of Regulation 11(6), any person who intentionally exposes another person to COVID 19 may be prosecuted for an offence including assault, attempted murder or murder.  An employee who is conscious of his COVID 19 status and who fails to advise his employer thereof or take measures to prevent others from being infected could notionally be prosecuted as aforementioned.

In addition to the Regulations, there exists between employer and employee, the duties of good faith, trust and care.  With regard to good faith, both employer and employee have a reciprocal duty of good faith towards each other as recognised by the Constitutional Court.  As such, an employee who withholds information (such as his COVID 19 status) from an employer while being aware thereof, would not be acting in good faith and in fact, in breach of such a duty.  In respect of the duties of trust and care, there is an obligation on an employee to not act in a manner which would destroy or damage the relationship of trust with his employer.  The deliberate failure by an employee to disclose his COVID 19 status to his employer would constitute a breach of this duty of trust and care.
In circumstances where an employee becomes infected with COVID 19 during the lock down period and completely recovers before returning to work, there seems to be no obligation to disclose his COVID 19 status to his employer unless directed to do so by an applicable company policy.  All companies should therefore implement a policy regulating employee’s conduct in respect of COVID 19 including, inter alia, the disclosure of an employee’s COVID 19 status.

Employers in turn should be mindful of their obligations in terms of the Occupational Health and Safety Act, 1993 (“OHSA”) specifically the duty to ensure that working environments are maintained in a safe state without risk to any employees’ health.  Employers are therefore entitled to prohibit an employee from entering the workplace and would be obliged to do so if they have knowledge of an employee’s COVID 19 status.  A failure to ensure that proper policies are in place to regulate employees’ conduct in respect of COVID 19 could therefore be determined as a breach of an employer’s obligations in terms of the OHSA.

While it is therefore not prescribed in labour laws, it would be incumbent on an employee to notify his employer both if he displays some of the known symptoms of COVID 19 or if he’s tested positive for COVID 19.  This is necessary so that the employer and fellow employees can take cognisance of the fact that they may have been in contact with the infected employee and may themselves be at risk.  Both employer and employee in this regard have a shared responsibility for the health of the organisation and their fellow employees.

With regard to leave, in the event that an employee becomes ill and displays some of the known symptoms of COVID 19, the normal principles of sick leave as determined in the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) would apply.  The Minister of Employment and Labour, Mr Thulas Nxesi however altered the situation slightly in his announcement of 17 March 2020 stipulating that leave required by employees who are obliged to submit themselves to self – quarantine for 14 days or longer will be recognized as “special leave” which in turn would allow employees to apply for UIF benefits provided the reasons for the quarantine meets the necessary requirements.  While under lock down however, an employee may already be working from home and able to continue working and would theoretically therefore not have to apply for sick leave.  Such circumstances would be regulated in terms of the employer’s leave policy.

Employees who are sick (for any reason) would still be required to comply with the relevant provisions of the BCEA and their employer’s leave policy if such a policy exists.  In terms of section 23 of the BCEA an employee will therefore have to provide his employer with a medical certificate relating to his illness that complies with the basic requirements stipulated in section 23(3).  These requirements are that the medical certificate must be issued and signed by a medical practitioner or person certified to diagnose and treat patients and is registered with a professional council established by an Act of Parliament.  While it has not been tested in any Court as yet, it seems to be that employers may not compel employees to take leave during the lock down period.  As such, an employer will in turn remain liable to pay an employee who has tested positive for COVID 19 in terms of section 22 of the BCEA, at least for the lock down period.  When the lock down has come to an end, such an employee may have to apply for sick leave and provide a medical certificate as contemplated above.

If an employee tested positive for COVID 19 resulting therein that he is absent from work for a prolonged or continued period,  an employer may apply the provisions of Schedule 8 of the Labour Relations Act 66 of 1995 (Code of Good Practice: Dismissals) in considering the dismissal of the employee for reasons related to his conduct or capacity.  It must however be noted that the illness of an employee as a result of COVID 19 (or other illness) does not permit an employer to retrench an employee in terms of section 189 of the Labour Relations Act.

Having regard to the above, it would seem prudent for employers to develop and adopt a policy dealing with COVID 19 and employee’s conduct in relation thereto having regard to the relevant Regulations.

JAN-HENDRIK SENEKAL Umhlanga Office