South Africa: Coronavirus and your workplace

Introduction

Coronaviruses are described by the World Health Organisation (WHO) as a family of viruses, ranging from the common cold to more serious ailments. A new strain of Coronavirus was detected in late 2019, namely, severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), previously known by the provisional name 2019 novel coronavirus, and this virus causes the disease named COVID-19.

COVID-19 is in many ways similar to the common cold, but has more serious effects, is generally considered more rapidly transmissible between humans, and is specifically more dangerous to the elderly. On available evidence, COVID-19 appears to remain dormant in the human body for approximately five days, after which adverse symptoms typically last for 14 days.

As at March 12, 2020, more than 128,000 cases had been detected, more than 4,600 deaths reported and 68,000 have recovered. On March 11, 2020, the WHO has declared COVID-19 a pandemic, meaning that it is a disease epidemic that has spread across a large region (multiple continents, or worldwide).

By March 13, 2020, there were 24 confirmed cases of COVID-19 in South Africa and no reported fatalities. Given that all reported cases have involved travellers from overseas, it is inevitable that this figure will increase and will have a growing impact on the workplace.

When an employee falls ill

The Basic Conditions of Employment Act 1997 entitles employees to be paid sick leave. This may also be regulated by employees’ contract of employment.

Where employees contract COVID-19, they should be permitted to take sick leave, subject to the normal notification requirements and employers’ right to obtain proof that the employee is in fact sick. This would normally be supported by a medical certificate from a qualified medical practitioner confirming that the employee is ill and will be off work for a stated or anticipated period of time.

Where an employee exceeds their sick leave entitlement, the balance of the employee’s leave will be unpaid unless agreed to the contrary. However, the employee would be entitled to claim unemployment insurance benefits (UIF).

In our view, it would not be appropriate for an employer to consider incapacity proceedings against employees infected by COVID-19 unless the disease causes long-term impacts on the employee’s health and thereby affects their ability to do their job. Should this become necessary, normal incapacity principles would apply. The Code of Good Practice requires that employers should evaluate the seriousness of the illness, the likely period of absence, the nature of the employee's job and whether a temporary replacement may be secured. The employee must be given a hearing before any adverse action is taken.

Self-quarantine

If you as employer have reasonable grounds to believe that an employee might be infected, you are entitled to require that employee to remain at home and to undergo medical testing before returning to the workplace. The WHO regards 14 days as a reasonable period of self-quarantine.

In that event, and unless the employee is confirmed as sick by a medical practitioner, this should be treated as special paid leave, rather than sick leave or annual leave, given that the leave is enforced by the employer. You are entitled to require that such employees work remotely where possible and subject to you providing your employees with the reasonable resources in order to perform these work functions. You would also be entitled to require your employees under such conditions to report in to the workplace.

Partial or temporary business closure

It is conceivable that businesses may be forced to close their operations, either due to widespread contagion or at the insistence of public health authorities, or even at the insistence of premises owners or letting agents. Should you be required to close your business for a temporary period, we recommend that you establish whether there are any short-time provisions in place for your industry or workplace, such that you might be excused from paying your employees for the period of closure.

In our view, it will not generally be possible for you to refuse to pay employees who are temporarily prevented from working due to the partial or temporary closure of your business. This much is regulated by your employment contracts and the BCEA. In certain limited circumstances, it may be possible to rely on impossibility of performance of the employment contact due to an ‘act of god’. However, this would be highly workplace specific and should be preceded by detailed advice.

Should the partial or temporary closure of your business result in financial distress, you may consider recourse to possible retrenchments or measures designed to avoid retrenchments. This will require you to comply with all procedural safeguards as set out in sections 189 and 189A of the Labour Relations Act 66 of 1995.

Practical steps

Employers should ensure that employees are advised in advance of the steps that will be put in place should a more widespread of outbreak of COVID-19 take place in South Africa. Education is key, and responsible workplace hygiene and social contact should be encouraged.

Employers should actively encourage sick employees to stay at home. Employees, who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival at work or who become sick during the day, should be separated from other employees and sent home immediately.

It is recommended that employers ensure that their premises undergo routine environmental cleaning, with specific regard to all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. No additional disinfection beyond routine cleaning is necessary at this time. However an employer may choose to provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use. Where possible, all work travel should be cancelled or re-scheduled – unless that travel is critical. Whilst an employer may not dictate to an employee how they should travel during their annual leave, employees should be encouraged to avoid travel until the situation improves.

If employees have recently travelled or intend to travel, whether for work or on annual leave, employers should request such employees to self-isolate and work from home, where possible, for a period of 7 – 14 days as a precautionary measure.

Employers may also wish to consider dissuading their employees from attending public events, such as conferences, functions and the like.

If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain the confidentiality of the infected employee. Employees who are well but who have a sick family member at home with COVID-19 should notify their employer and should contact a health practitioner if they have had any contact with the infected person.

Employers should monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher-than-usual absenteeism. Cross-train personnel to perform essential functions so that the workplace is able to operate in the event that key staff members are absent. Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if necessary to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).

Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each locality.