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Employment Implications for your Workplace

There is a lot of uncertainty in relation to how Covid-19, the Regulations and Directives published in an effort to prevent the escalation of Covid-19 impact the employer/employee relationship. Below, we consider various scenarios aimed at providing legal clarity on such matters.

Employees under Quarantine

In circumstances where an employee has been confined to a health establishment or a quarantine or isolation site, as a result of testing positive for Covid-19 or being suspected of having contracted Covid-19, an employer should consider sick leave or special leave. The standard sick leave procedures must also apply. Therefore medical certificates from registered health or medical practitioners must still be submitted by the employees.

Where the 14 days in respect of the quarantine period or self-isolation is required to be extended, further additional sick leave or special leave must be applied to the affected employee(s). Each case will have to be assessed on its own merits, as is provided for in Regulation 14 of the Regulations relating to surveillance and the control of notifiable medical conditions published under the National Health Act, 2003 (“the Surveillance Regulations”), which provides amongst others that the need, nature and extent of quarantine must be assessed, based on the nature of the public health risk and the particular circumstances of the individual. The interventions would thus differ from case to case, and with the due care and consideration that employers are required to show towards their employees during the disaster management period.

It should be noted that the Minister of Employment and Labour further stated on 17 March 2020 that self-quarantined employees on 14 days or longer should be given special leave and that in addition, they can apply for UIF benefits. The benefits will only be paid if the reason for the quarantine meets the requirements set by the Government in the Regulations read together with the Surveillance Regulations i.e. the quarantine is consequent to the Covid-19 positive testing, or suspicion and as ordered by a healthcare provider or a court order. This aligns with the employer’s obligation in creating a safe and healthy working environment.

Employees compelled to stay at home as a result of the lockdown.

At the outset, it is debatable whether the employer may force employees to take annual leave. In one of the interviews on a local talk-show radio station, the UIF Commissioner stated that when a disaster has been declared by the President in terms of the Disaster Management Act 2002, (“DMA”), all applicable laws and policies are “trumped upon” and the provisions in the DMA will find application. However, we found no relevant provision from the DMA that provides clarity to the issue of annual leave.

In this regard, employers may adopt the following procedure:

  • Firstly, employers are encouraged to treat the days of absence from work as special leave. This, on the basis that the Covid-19 pandemic is beyond the employee’s control and naturally, employees would voluntarily apply for annual leave in order to go rest;
  • Employers should seek an agreement from employees that the days of absence during the lockdown be deducted from the annual leave days. This may have an impact on employees who may have less annual leave days or those who had planned to take their annual leave during the December holiday period when most companies shut-down;
  • In the absence of an agreement, the employer is, in terms of section 20 of the Basic Conditions of Employment Act, 1997 allowed to determine the timing for the taking of annual leave by employees. In this context, employees may be forced to have only their statutory part of the annual leave (15 business days) deducted during the lockdown as a result of their absence from work.
  • Employers may also use the opportunity to encourage those employees with high accumulated leave days to use the lockdown absence from work in reducing such highly accumulated annual leave. This, in an effort to minimise the financial burden over the company and especially during the Covid-19 pandemic.
  • All absences from work should be paid. If an employer finds itself in a financial distress because of the Covid-19 lockdown and consequently not able to pay full salaries to employees, it should apply for relief benefits as provided for in the Covid-19 Temporary Employee / Employer Relief Scheme, 2020 (“Covid-19 TERS” ) which was gazetted by the Minister of Employment and Labour on 26 March 2020.

The requirements for Covid-19 TERS relief benefits

  • An affected company and its employees must be registered with the Unemployment Insurance Fund;
  • The company must follow the specified application procedure for the emergency relief fund, and not for ordinary UIF benefits;
  • The closure of the affected company should be directly linked to the Covid-19 pandemic. In essence, the company must show that it had to close its operations as a result of the Covid-19 pandemic for a period of no more than 3 months, and the closure thereof has resulted in financial distress.
  • No affected employee is allowed to make the application. Employers must do so on their behalf through an online application and to the relevant email address covid19ters@labour.gov.za.
  • In the event of the application being successful, employees could receive benefits of up to a maximum of R17 712.00.

Restructuring or possible retrenchments

If, as a result of the Covid-19 pandemic, employers experience severe impact which may necessitate them to restructure their business operations, the legal process as set out in section 189 or section 189A (for large scale possible retrenchments) of the Labour Relations Act would have to be complied with, and relevant notices must be issued as a matter of priority.

Any possible retrenchment must be underlined by valid operational requirements, namely the impact of the lockdown. It is arguable that the Covid-19 lockdown may constitute a force majeure for most business operations which are not essential services, and which could not operate during the lockdown.

NB: The above highlighted points are for general information to all our clients. Specific advice must still be sought from our employment team members, as the issues affecting your organisations may differ from one workplace to the other.

Authors

Osborne Molatudi et Sayi Nindi
omolatudi@mcinc.africa
snindi@mcinc.africa

Author Osborne Molatudi

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