Coronavirus – why South African employers have a common law duty to care
Authors: Jean Ewang – Director and Jordyne Löser – Associate
The Coronavirus outbreak has now reached South Africa as more and more cases are confirmed and South Africans from Wuhan Province in China are being repatriated.
There doesn’t seem to be much cause for alarm yet but as the threat gets closer to home employers in South Africa best prepare to avoid being exposed to liability.
Employers have a common-law duty to ensure that the workplace is safe and healthy, as well as a statutory obligation in terms of the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (COIDA).
The statutory obligation places a duty on employers to create a working environment that is safe and without the risk to employees and non-employees “as far as reasonably practical”. Employment contracts may also contain obligations which deal with ill-health and employers should be alive to this aspect.
The General Safety Regulations published under the OHSA prohibit an employer from permitting a person to enter a workplace where the health and safety of that person is at risk.
There are also obligations on employees to take reasonable care of themselves, co-operate with employers and report hazards. CEOs including heads of departments in state departments carry the weight of the statutory responsibility.
In terms of managing the workplace many procedures apply. Some are mandatory and others, although not required, are pragmatic to prevent potential disruption to operations.
Safety representatives and committees
There is a statutory obligation on every employer with more than 20 employees to designate health and safety representatives who have a range of functions. The Occupational Health Safety Amendment Act regulates the exact number of representatives to be elected and their functions. Where there are two or more representatives, a safety committee must be formed whose main function is to make recommendations to the employer and compile reports.
The same committee should be tasked with implementing the low-cost strategies that the World Health Organisation (WHO) has helpfully recommended to prevent the spread of general infections in the workplace. According to the WHO these measures would also reduce the number of working days lost due to illnesses.
Employers may impose rules on their employees in order to ensure a safe working environment. Also, employers may place conditions on entry into its premises.
President Ramaphosa has acknowledged the negative effect of the outbreak on conferences and investment in South Africa. Similarly, employers may be concerned about workplaces being exposed to persons who have had contact with affected areas as well as general work travel.
A form of risk-benefit analysis would need to be done when considering travel for work. Teleconferences and other technological innovations may suffice and will eliminate the risk of exposure.
If an employer deems travel necessary, then it would be prudent to develop a policy (which must be consistently updated) to take into account countries with exposure to the virus. The policy should specify whether and under what conditions people who have had exposure to affected countries should be required to return to the South African work-site.
It may also be necessary that employers require employees to disclose if they have travelled internationally recently and determine how this is to be managed. Can an employer require an employee to be quarantined if the employee recently travelled to an affected country – is this paid or unpaid leave? Is it perhaps sick leave? In the case of compulsory quarantine (i.e. quarantine required and enforced by the employer), the employee will not technically be on sick leave unless a medical certificate has been issued placing the employee in quarantine.
There is nothing which precludes the employee in these circumstances from being certified by a doctor to be quarantined which will allow the employee to claim from sick leave benefits.
A workplace without a workforce
There is potential for unexpected, and mass absenteeism should the virus spread. This will affect operations and profitability. The challenge will be to ensure the continuity of the business. Employers around the world have adopted numerous strategies depending on the nature of the business, such as working in split-teams where physical presence is required or working remotely where physical presence is not required.
Working remotely presents challenges in work environments that are not used to agile work. It seems that the best method in quickly implementing an agile workplace is to monitor output while being explicit about what is expected and in what timeframe tasks are to be completed.
Medical testing of employees needs to be justifiable. The most practical approach would be to develop a policy on this issue ahead of time, and to consult with employees so that they are more likely to co-operate when the need arises. Subjecting individuals to a temperature test must be conducted with regard to the employees right to privacy and their consent should be obtained.
The policy would also need to deal with the procedure in the event of a positive diagnosis. This would include reporting the matter to the appropriate authorities and to employees working from home if practical so that productivity is minimally affected.
Ancillary legal issues
Other issues which will arise include:
Whether it would be permissible to suspend an employee for safety reasons, whether the suspension would constitute an unfair labour practice.
Under the most severe circumstances would dismissal be warranted? Dismissal for incapacity, or misconduct because the employee refuses to comply with workplace policies.
Whether there are any obligations in collective agreements that relate to ill-health management.
All forms of leave and especially how this applies to ‘essential’ staff members and needs to be determined by the employer to avoid confusion.
Dealing with victimisation/stigmitisation of an affected employee.
Obligations under the Facilities Regulation of OHSA.
There have been similar health crises in the past, but none has posed such a great risk to South African employers in recent times. The situation is fluid and so employers need legal advice tailored for their specific circumstances.
Protocols would also need to be clear and fact-based, and their implementation will take a concerted effort.
Now is the best time to prepare for the current and future health crises so that businesses can continue to run with no or minimal disruption. Such policies should focus on long-term governance and take into account risks to all aspects of the business, such as the supply chain and risks to its labour force.
The COIDA protects the employer from delictual liability in respect of employees who contract an illness during the course and scope of employment. An employee under COIDA does not need to prove the employer’s negligence. Increased assessments rates under COIDA provide that where the employer was indeed negligent that increased compensation received by the employee may be for the account of the employer. Best that employers take the necessary precautions. – get that COVID-19 policy done now sooner than later.
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