Employment Survival Guide - Know your employment rights - Labour Guide
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Employment Survival Guide Know your employment rights
Employment Survival Guide
Know your employment rights
SHUTDOWN! What about employees? Options below
Annual Leave Temporary Employee Disaster
Relief Scheme Management Fund
Employees may be asked to
use their annual leave during In terms of the TERS process, The employer may decide, as
this time. This only applies to the UIF may fund the distressed a direct result from the current
the statutory portion of annual companies directly in relation to the Coronavirus (COVID-19) pandemic
leave (i.e. 15 business days). TERS Allowance. to close their business for a period
and send employees home. This
Statutory annual leave is regulated It allows for three types of relief:
constitutes a temporary lay-off. If
by the BCEA. Section 20 sets ∞ Wage subsidy; the employer cannot pay employees
out the framework for statutory
∞ Wage subsidy and training; and for this period, the employer can
annual leave. An employer must
∞ Turnaround solution. apply for the “National Disaster
grant statutory annual leave in
Benefit” from the UIF. This benefit
accordance with an agreement The distressed company will only will be at a flat rate equal to the
between the parties. In the absence be funded if it meets the key minimum wage (R3,500) per
of an agreement the employer may requirements of the UIF which employee for the duration of the
determine the time for statutory includes that the distressed shutdown or a maximum period of
annual leave to be taken. When an company is able to demonstrate three months, whichever period is
employer wishes to send employees that it will/or has embarked upon the shortest.
home on statutory annual leave to a turnaround or sustainability
keep them away from the office programme which will result in job
during a pandemic such as this, it preservation at the expiry of the
may determine the time for them to funding agreement.
take statutory annual leave. UIF Special Leave
If employees must subject
themselves to be self-quarantined
for 14 days (or longer) such leave
Reduced salary will be recognised as “special leave”
and employees will be permitted
Employees and employers
to apply for UIF benefits which
may negotiate and agree on a
will be paid on condition that the
reduced salary.
reason for the quarantine meets the
necessary requirements.
2 | EMPLOYMENT ALERT March 2020
Employment Survival Guide
Know your employment rights
The COVID – 19
(or “Coronavirus”) is spreading.
Employers and employees
have a role to play in limiting its
impact. In this alert, we answer
some of the most pressing
questions that have been asked
over the past few days.*
1. What is an employee’s 3. When is an 5. What if sick leave
sick leave entitlement? employer not required is exhausted?
to pay sick leave?
The Basic Conditions of An employer is not required to
Employment Act 75 of 1997 (BCEA) In terms of section 23 of the BCEA, pay employees for sick leave taken
regulates sick leave entitlement. In an employer is not required to pay when the sick leave entitlement has
terms of section 22 of the BCEA, the an employee for sick leave if the been exhausted.
“sick leave cycle” means the period employee has been absent from
of 36 months’ employment with work for more than two consecutive
the same employer immediately days or on more than two occasions
following an employee’s during an eight-week period and,
commencement of employment. on request by the employer, does
During every sick leave cycle, an not produce a medical certificate
employee is entitled to an amount stating that the employee was
of paid sick leave equal to the unable to work for the duration of
number of days the employee would the employee’s absence on account
normally work during a period of of sickness or injury.
six weeks. Usually (for an employee
who works five days a week) this
equates to 30 days’ sick
leave per 36 months of
employment. 4. What are the basic
requirements for the
medical certificate?
The medical certificate must be
2. Must an employee be issued and signed by a medical
paid for sick leave? practitioner or any other person
who is certified to diagnose and
Subject to section 23 of the BCEA, treat patients and who is
an employer must pay an employee registered with a
for sick leave: a) the wage the professional council.
employee would ordinarily
have received for work on
that day; and b) on the
employee’s usual pay day.
3 | EMPLOYMENT ALERT March 2020
Employment Survival Guide
Know your employment rights
6. What about “special leave”? 9. May employers consider
retrenchments due to the
The Minister of Employment and Labour, Mr Thulas Nxesi, announced on
impact of the Coronavirus?
17 March 2020 that if employees must subject themselves to be self-quarantined
for 14 days (or longer) such leave will be recognized as “special leave” and employees Section 189 of the Labour Relations
will be permitted to apply for UIF benefits which will be paid on condition that the Act 66 of 1995 applies if an
reason for the quarantine meets the necessary requirements.* employer contemplates dismissing
one or more of its employees for
reasons based on its operational
requirements. “Operational
requirements” is defined as
7. Will the Department of Labour assist employers requirements based on the
in distress? economic, technological, structural
The Minister of Employment and Labour, Mr Thulas Nxesi, announced on or similar needs of the employer.
17 March 2020 that a period of reprieve will be considered in order for companies
A retrenchment is as a result of no
not to contribute to the Unemployment Insurance Fund (UIF). He said the Employee
fault on the part of the employee.
Relief Scheme will be used to avoid workers being laid off. Companies contemplating
In the circumstances, it is not an
a short term shut down must notify the Department who will dispatch a team to visit
opportunity for an employer to
these companies to provide assistance with the processing of UIF claims.**
terminate the employment
of ill employees.
8. When can an employee be dismissed due to
the Coronavirus?
In terms of Schedule 8: Code of Good Practice Dismissals, an employer must
investigate the extent of the illness if the employee is temporarily unable to work.
If the illness may result in a prolonged absence from work, alternatives to a dismissal
must first be considered. The factors to take into account in considering alternatives
to dismissal include, the seriousness of the illness, the period of absence, the nature
of the employee’s job and whether a temporary replacement may be secured.
During this process, the ill employee should be given an opportunity to make
recommendations as well. Only once all these processes have been followed and no
alternative to dismissal found, may an employer consider dismissal.
*The answers to these questions are always subject to the specific
facts of each matter and we recommend that you contact an
employment law expert for advice applicable to your facts.
** These issues are developing and we are still to receive further
detail on government's considerations in this respect and when this
will become effective.
4 | EMPLOYMENT ALERT March 2020
Employment Survival Guide
Know your employment rights
10. May an employer 11. May employees be required to work from home?
require an employee
Yes. Working from home may be permitted. This is not always viable but
to use annual leave?
could be considered in a corporate environment. Should employers consider this
Yes, however this should not be option, we recommend that clear guidelines be set for employees. This may include
done for periods of self-isolation or that the working environment must be safe, the employee must have a secure
quarantine and only applies to the telephone line and Wi-Fi connection and employees should remain within travelling
statutory portion of annual leave distance of the office.
(i.e. 15 business days). This measure
is also subject to the contents of
the contract of employment, leave
policy or any applicable collective
agreement. 12. As an employer, what are • It may also be necessary to relax the
my obligations whilst the sick leave policy or to permit more
Statutory annual leave is regulated workplace is open? flexibility in working arrangements.
by the BCEA. Section 20 sets
The Occupational Health and Safety On 17 March 2020, the Minister of
out the framework for statutory
Act 85 of 1993 (OHSA), requires an Employment and Labour urged
annual leave. An employer must
employer to bring about and maintain, as employers to conduct a health and
grant statutory annual leave in
far as reasonably practicable, a working safety risk assessment in consultation
accordance with an agreement
environment that is safe and without with its employees, whilst ensuring that
between the parties. In the absence
risk to the health of its employees. measures are put in place to ensure a
of an agreement the employer may
For this reason, we recommend that healthy workplace in terms of its health
determine the time for statutory
employers adopt contingency plans and safety obligations such as the
annual leave to be taken. When an
and communicate with its employees provision of the necessary protective
employer wishes to send employees
regarding the measures it will adopt equipment and put in place systems
home on statutory annual leave to
in securing the workplace. This may to deal with the outbreak, as well as
keep them away from the office
include: including all mitigating measures that are
during a pandemic such as this, it
to be put in place until the outbreak has
may determine the time for them • the prohibition of handshakes or been dealt with.**
to take statutory annual leave. The physical contact;
employees are paid as they are on
statutory annual leave. • limitation on meetings;
• sufficient supply of hand sanitizer; or
• requiring employees to work from
home, should they feel sick in
any way.
5 | EMPLOYMENT ALERT March 2020
Employment Survival Guide
Know your employment rights
13. As an employee, 14. Practical Tips if the workplace is open
what are my
The following practical tips may be considered:
obligations, if the
workplace is open? 14.1 The prohibition of unnecessary meetings and the increased use of video
conferencing facilities.
The employee and the employer
share the responsibility for health 14.2 The prohibition of any form of physical contact, specifically hugs and
in the workplace. Therefore both handshakes.
the employee and employer must
14.3 Requiring employees to report to their manager if they feel unwell in order to
pro-actively identify dangers and
possibly allow that employee to work from home.
develop control measures to make
the workplace safe. For this reason, 14.4 Requiring employees to disclose if they have travelled to a high-risk area
employees should abide by any recently.
policies adopted by the employer to
14.5 A rule that requires employees to wash their hands regularly.
curb the spread of the Coronavirus.
Employees should also inform their
employer if they are aware of any
risk to the health of their colleagues.
15. As an employer, what are the options during the shutdown?
The options are set out in the option schedule, included with this survival guide. It includes, annual leave, reduced salaries,
the temporary employee relief scheme or the disaster management fund.
6 | EMPLOYMENT ALERT March 2020
Employment Survival Guide
Know your employment rights
How do we measure up? The impact of the economic recession
and COVID-19 on the performance of the CCMA and UIF
On Wednesday 4 March 2020, the Parliamentary Portfolio Committee on Employment and Labour was briefed
by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Unemployment Insurance Fund
(UIF) on their respective second quarterly performances 2019/20. The discussions raised the negative impact
on performance of the economic recession and in turn budget constraints, as well as the challenges posed by
COVID-19 (Coronavirus).
The pressure on UIF was noted following the mechanisms put in place by the Of approximately 22,500 employees who
the 2017 amendments to the UIF Act, Department to enforce compliance and were on the brink of losing their jobs,
which was aimed at improving benefits accountability of employers. This is in line the intervention of the CCMA resulted in
to contributors. It was reported that the with its commitment to offer protection about 9,500 jobs being saved. Improved
increase in benefits payments estimates to vulnerable, isolated employees and resources could improve this figure. A
resulted in a 146% overspend. It was create accessible channels. The Hotline further example of positive performance
further noted that the recession results will drive enforcement by tracking was the roughly 78% of strikes having
in employment in the form of seasonal troublesome sectors. Inspectors will been settled by the CCMA (36 out of
and contract work as opposed to be deployed to investigate complaints 46 was intervened in and resolved by
permanent employment (particularly in within 14 days of a complaint having the CCMA). Whist these examples are
the agricultural and construction sectors), been lodged. The Director of the CCMA to be commended, the prospect of
which increases unemployment. This, in noted that the CCMA is confronted continued and improved performance is
turn, increases UIF claims. The increasing by challenging questions relating to questionable. A concern was raised in the
claims reflect a worrying lack of skills domestic work and the national minimum meeting that a worst-case scenario may
amongst the youth. Important questions wage. It is anticipated that the national see the increased pressure on the limited
were raised by the Committee as to minimum wage and questions of resources of the CCMA resulting in the
whether UIF was ready and had sufficient affordability will result in an unfortunate CCMA having to turn away cases.
finances to deal with the anticipated spike increase in the retrenchment of
The Deputy Minister of Employment
in claims given the possible increase domestic workers.
and Labour noted that South Africa is
in the retrenchment of civil servants
The concerning and significant strain on the verge of despair as it faces the
following the Budget Speech and in
on the CCMA’s resources following simultaneous challenges associated with
addition, as a result of the Coronavirus.
budget cuts and amongst other the Coronavirus and the economic crisis.
The Committee noted the Department’s factors, the increase in retrenchment However, she encouraged citizens to
launch on 6 March 2020, of the National related cases, was discussed. The meet the challenge saying that “the best
Minimum Wage Hotline. The Hotline budget cuts have prevented the much- economy is achieved by teamwork”. It is
enables employees to report cases needed appointment of additional hoped that this can indeed be achieved
of non-compliance with the national full-time commissioners. and that all South Africans can work
minimum wage without incurring together to avoid debilitating despair in
Despite the challenges which the CCMA
any cost themselves. No data, airtime these challenging times.
faced and continues to face it performed
or smartphone is necessary to make
well in various respects in quarter two.
a complaint. The Hotline is one of
7 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
C is for closing borders and COVID-19, but sometimes also
concessions
Since the outbreak of the COVID-19 (Coronavirus) in late 2019, over 215 000 people have been diagnosed with the
illness and over 10 000 confirmed people have died at the time of penning this article.
On 15 March 2020, President Cyril Travel Advisory issued the Minister of Consulate to apply for a visa. However,
Ramaphosa, while giving a national International and Cooperation warns these visa applications will only be
address on national television, stated that South African citizens planning to considered on merit and thus amounting
that there would be strict temporary travel through the Italian Republic, the to a case-by-case basis visa issuance.
measures to restrict the inflow of foreign Islamic Republic of Iran, the Republic of
Furthermore, in accordance with the
nationals into the country as a result Korea, the Kingdom of Spain, the Federal
Immigration Directive NO.7 of 2020,
of the Coronavirus and its threat to Republic of Germany, the United States
any foreign national present in South
the general populace. The Ministry of of America, the United Kingdom, the
Africa who originates from a country
Home Affairs and the Department of French Republic, the Swiss Confederation
affected with COVID-19 or who will
International Relations and Cooperation and China as well as the European Union
through transit have to pass through a
have since then acted accordingly. Hence should refrain from doing so. Further, that
COVID-19 affected country is permitted
a temporary travel ban has been issued they should also refrain from travelling
to re-apply for a visa, in which such visas
to be implemented from 18 March 2020, on cruise ships with immediate effect
will be valid until 31 July 2020. Should
which bans all entry regardless of the visa until further notice. It must be noted
it be the case that the visa had already
status of all foreign travellers emanating that all international travellers including
expired since 1 December 2019 or is to
from Italy, Iran, the Republic of Korea, South African citizens, entering South
expire by 31 March 2020 they will still be
Spain, France, the Swiss Federation, the Africa will be required to complete the
permitted to reapply for a visa without
USA and China. Any foreign national no prescribed health form to be handed to
needing to first obtain a Form 20. A Form
matter place of origin who had visited Health officials and Immigration officers.
20 is a requirement needed by an illegal
any of the mentioned above high-risk Including this they will be subjected
foreigner where their visas have expired.
countries in the past 20 days would be to medical screening upon entering
A Form 20 will allow them to remain
denied visa and presumably denied entry South Africa.
in the country pending the application
into South Africa whilst travellers from
Concessions status of their visa re-application.
medium risk countries such as Portugal,
However these concessions are only
Hong Kong and Singapore will have A few concessions have however
afforded to foreign nationals who had
to undergo high intensity screening. been made. These concessions allow
been legally admitted into South Africa.
Foreign nationals from medium risk a departure from the welcomed but
Where a foreign national does not
countries which were exempt from visa sever restrictions highlighted above.
meet one or more of the prescribed
requirements will now with immediate The above-mentioned restrictions
requirements for a temporary residence
effect be required to apply for visas in do not include holders of diplomatic
visa, he/she may apply to the Minister in
order to visit South Africa in which a passports and travel documents issued
the prescribed manner to waive such a
medical report will be required to indicate by international organisations as well
requirement(s). However, no application
whether or not they have tested positive as their family members and holders
for change of status or conditions will
for COVID-19. of official/service passports. These
be allowed. In other words, the
restrictions will not apply to the crew
Any port of entry visas that were issued foreign national will only be
members of aircraft and cargo ships,
to citizens of China and Iran before or on allowed to apply for a new
as well as cross border rail and road
15 March 2020 for the purposes of visiting temporary residence
transportation workers. However, the
the Republic have been cancelled with visa on the same
excluded travellers will be subjected
immediate effect and declared null and visa conditions.
medical screening and be isolated or
void. Furthermore, South African citizens
quarantined if required. If however
returning from any high risk countries
any foreign nationals need to travel
will have to undergo testing and self-
to South Africa for an emergency or
quarantine on their return to South Africa,
any compelling reasons may contact
self-quarantine means self-isolation
the nearest South African Mission or
for a period of 14 days. Through the
8 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
Employees – Go Home! “No Work No Pay”? The Unintended
Consequences of COVID-19
“COVID-19 - helping people realise that some meetings can be emails.” These are the words which have appeared
in one of the popular memes being circulated in response to the spread of the COVID-19 (Coronavirus). Although
in jest, they reflect the truth that COVID-19 has served as a disruptor in the labour context by presenting employers
with entirely novel legal challenges and forcing them to adapt their labour practices to remain commercially
viable. Our labour legislation has developed to cater for labour disputes and industrial action in a world free from
pandemics. However, COVID-19 has created entirely new and unforeseen legal issues which our labour statutes are
arguably ill-equipped to address. The consequences of the spread of COVID-19 cannot be ignored and the onus
falls on employers and legal practitioners alike to consider what legal issues will arise and how our labour law can
adapt to address these.
The President in his address on employees to work from home as a Due to the novelty of these legal issues,
15 March 2020, noted the significant precautionary measure. Some employers the considerations which employers are
and lasting impact that COVID-19 will have adopted a rotation system whereby to make in addressing them are similarly
have on our economy – referring to the employees take turns to attend work novel and countless. The issue which has
dramatic decline in economic activity according to a shift schedule. Some bedevilled many-a-citizen is the extent
in our major trading partners, a sudden employers have further been forced to of employers’ remuneration obligations
drop in international tourism and severe send their employees home as a result of in circumstances where a pandemic has
instability across all global markets as operational and supply chain disruptions caused employees to be sent home for
proof thereof. President Ramaphosa caused by COVID-19. All of these reasons beyond the employers control
provided that the anticipated effects of responses have short term and long-term and employers aren’t able to utilize their
the decline in exports and tourist arrivals legal consequences. productive capacities.
will be exacerbated by both an increase
The legal questions which have arisen in The question becomes how does the
in infections and the measures we are
response to the President’s address and law expect employers to balance their
required to take to contain the spread of
the current state of affairs include: what remuneration obligations to employees
the disease. President Ramaphosa further
are employer’s obligations under the with their obligations to maintain a
noted the severe impact COVID-19
Occupational Health and Safety (OHS) commercially viable business?
will have on production, the viability
Act and how must they comply with them
of businesses, job retention and job Employers are to consider the following
in the circumstances? What qualifies as
creation. In light of these impending and obligations, arising from contract and
a gathering and what effect does the
devastating consequences, the President statute, in responding to this scenario:
prohibition have on the workplace? What
announced that Cabinet was in the
are the consequences of the prohibition ∞ Short-time or Temporary Layoffs:
process of finalizing a comprehensive
of gatherings of more than 100 people on
package of interventions to mitigate Employers may want to consider
protests and pickets? Does COVID-19 and
the expected impact of COVID-19 on short-time or temporary layoffs
qualify as a force majeure and what are
our economy. This package, which as a means of balancing their
the consequences of this on employer’s
will consist of various fiscal and other obligations to their employees
contractual obligations? Following
measures, will be concluded following with the need to maintain
from this, will employers be required to
consultation with business, labour and a commercially viable
continue paying their employees even
other relevant institutions. business.
where doing so would jeopardize the
Employers’ responses have been diverse commercial viability of their business?
and dependent on their particular What impact will COVID-19 have in
context. Some employers have sent catalysing the fourth industrial revolution?
9 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
Employees – Go Home! “No Work No Pay”? The Unintended
Consequences of COVID-19
Short-time entails the reduction of of payment where there is a risk of The Minister further provided that
the working hours of an employee, jeopardizing the continued operation where an employee is required to
with a corresponding decrease in the of the company and rendering it be quarantined for 14 days, such a
employee’s remuneration. insolvent. Accordingly directors leave will be recognized as a special
should be cautious in complying with leave which will be fully paid on
Temporary layoffs entail the
their fiduciary duties. condition that the reason for the
temporary suspension of employees’
∞ Retrenchment/4th Industrial quarantine meets the requirements.
employment where the employer is
Revolution: Where an employee is required to be
unable to afford its employees due
quarantined for a period of longer
to a lack of revenue coming into Employers are having to adapt to than 14 days, due to having travelled
the business. the operational disruptions created or having been in contact with an
∞ An Act of God and Contractual by COVID-19 by increasingly using infected person, then such leave will
Obligations: technology. The unexpected be recognized as special leave and
consequence of this may be that that employee will be eligible to apply
The employer should also consider
the fourth industrial revolution is for unemployment insurance benefits.
what the impact of the common
catalysed as employers realize that Notably these benefits will not come
law doctrine and principles relating
their businesses can operate with from employers pockets.
to an act of God and supervening
technology instead of employees. In
impossibility of performance ∞ Regulations issued in terms of the
view of this unintended consequence,
may have on their contractual Disaster Management Act:
employers may want to effect
performance obligations.
retrenchments for operational The Department of Cooperative
There are circumstances reasons. The consequences of the Governance and Traditional Affairs
where employer’s contractual fourth industrial revolution may issued Regulations in terms of the
remuneration obligations may unintentionally be brought forward. Disaster Management Act setting
arguably be temporarily suspended ∞ Period of Reprieve and Paid out steps necessary to prevent the
as a result of performance thereof Quarantine Period: escalation of COVID-19. In terms of
becoming impossible due to an these Regulations, the Department
act of God or an unexpected and The Minister of Employment and of Defense and organs of State must
unforeseeable occurrence. Labour, Minister Thulas Nxesi, make resources available to ensure the
provided that in order to assist delivery of essential and emergency
There is little South African case distressed companies a period of services. Employers who qualify as
law applying these principles in the reprieve will be considered whereby an essential and emergency services
employment context. However, in employers will not be required to should bear the provision of these
cases dealing with an outbreak of contribute to the Unemployment resources in mind.
foot and mouth disease in Botswana, Insurance Fund (UIF). The Minister
the court held that employers were further provided that the Fund’s
discharged from their remuneration temporary Employer/Employee Relief
obligations where the employment Scheme will be used to ensure that
contracts were rendered impossible to workers are not laid off. Accordingly,
perform as a result. where employers decide to
∞ Directors Fiduciary Duties: temporarily close as a precautionary
measure, the short term UIF benefit
Company employers must consider
will be triggered upon the company
their duty to act in the best interests
informing the Fund of their intention
of the company when sending
to close.
employees home with a promise
10 | EMPLOYMENT ALERT March 2020Employment Survival Guide
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Employees – Go Home! “No Work No Pay”? The Unintended
Consequences of COVID-19
Notably, the Regulations people to disperse. If they refuse to retrenchments. The disruption caused
further provide for penalties for disperse the enforcement officer by COVID-19 must also been seen as
non-compliance with its provisions, must take appropriate action, which a catalyst for employers to adapt their
including a fine or imprisonment. may include arrest and detention. operations so as to successfully move
∞ Definition of Gatherings in terms of into the 4th industrial revolution. This
Conclusion:
the Regulations: entails that employees’ ability to work
Employers must also bear in mind be decentralized from the physical
The definition and regulation of that even after the virus has been workplace into employees homes where
gatherings in the abovementioned addressed effectively, there will be legal possible. Ultimately, in view of the
Regulations bears further consequences resulting from the effects unforeseen threats posed by COVID-19
consideration. The Regulations thereof on the workplace for many to business, employer’s would be wise to
define a gathering as any assembly, years to come. Where dismissals and tread carefully and undertake a thorough
concourse or procession of more retrenchments eventuate as a result of consideration of the above factors in
than 100 persons, wholly or partially the operational disruptions caused by determining their obligation to pay
in open air or in a building or the virus, courts will want to see what employees so as to avoid the negative
premises. The Regulations provide employers did at the time of the spread long-term legal consequences which
that where a gathering takes place, of the virus to mitigate against the risk of may visit upon them should they not.
enforcement officers must order the
11 | EMPLOYMENT ALERT March 2020Employment Survival Guide
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Coronavirus and the workplace: What to do?
On 5 March 2020, South African Minister of Health, Dr Zweli Mkhize, confirmed the first incident of COVID-19,
commonly known as the corona virus in South Africa. This is likely to create a panic in workplaces across the
country because of the way in which the virus spreads. What do we know so far?
Corona virus spreads through: Also, the option of remote working 2. Can employees wear a face mask
∞ coughing or sneezing; is only open to a small percentage of to work?
South African employees – retailing, ∞ Unlike industries such as mining
∞ close personal contact; and
banking and fast-moving company goods and firefighting where protective
∞ touching an object or surface on companies cannot afford to extend the clothing is a requirement,
which the virus is found. same arrangement. In those instances, employers are not legally obliged
The advent of the virus will most the employers should consider the to provide masks.
likely result in employees wanting following questions:
∞ Therefore, wearing face masks to
to work remotely and take extended Employers must be proactive and take work would be at the employer’s
leave because of the virus. The Basic charge and encourage calm. These are discretion and informed by its risk
Conditions of Employment Act 75 of 1997 some ideas: to exposure to the virus.
has a closed list of recognised forms of
leave – sick leave, family responsibility 1. Does the threat of infection have the In conclusion, employers need to be
leave, adoption leave, annual leave and potential of impacting or affecting proactive in their efforts to mitigate the
paternity leave – with the exception of organisational culture? spread of the virus. Subtle changes in
annual leave, none of these forms of ∞ Human touch is part of workplace culture such as declaring the
leave accommodate employees who do everyday work life, therefore, workplace a handshake free environment
not wish to report for fear of contracting organisational culture such and creating awareness for visitors,
a virus. Sick leave should only apply to as human interactions, and clients and other external stakeholders to
employees who are showing symptoms handshakes amongst other manage expectations are an option. For
of the virus (i.e. actually sick) as opposed things will likely decrease. those employees experiencing symptoms
to those who fear contracting the virus. the virus, the employer may encourage
∞ Therefore, launching a hygiene
those employees to wear masks as a
If the virus escalates, employers across campaign, including instructional
precautionary measure. This is dependent
the country may be required to consider guides on how to wash hands
on the prevalence of the virus across
flexible working arrangements such as effectively and keeping an
the country.
– allowing employees to work remotely employee’s workspace clean and
instead of reporting to the office, and hygienic is an option. At the time of publishing this article,
even limiting traveling for employees. The there was only one reported incident in
option of remote working will be subject the country.
to operational requirements of that
particular employer.
12 | EMPLOYMENT ALERT March 2020Employment Survival Guide
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IMMIGRATION
Coronavirus – temporary concession for Chinese Nationals
currently in South Africa
Since the outbreak of the COVID-19 virus in late 2019 (coronavirus), nearly 80,000 people have been diagnosed
with the illness and more than 2,600 people have died at the time of penning this article – it’s no wonder the
world is sitting up to take note of these developments.
The world’s authorities have learned that allowed to apply for a new visitor’s visa These temporary concessions are only
swift action is needed in order to prevent on the same visa conditions for a further valid until 31 July 2020 and is only
the widespread distribution of the illness three-month period. available to Chinese Nationals who were
across international borders. legally admitted into South Africa.
Chinese Nationals who hold
Some countries and airlines have intra-company transfer visas, which Unfortunately, these concessions do
embargoed flights to and from China visas are due to expire on or before not seem to provide any relief to non-
and have even gone so far as to deny 31 July 2020, will be permitted to Chinese citizens, but who are ordinarily
Chinese Nationals who from the Wuhan apply for three-month visitor’s visas resident in China. Non-Chinese citizens
district (situated in Hubei), entry into (with authorisation to work) in terms of who are required to return to China, may
state territory. section 11(2) of the Immigration Act. need to apply for special authorisation to
benefit from these concessions.
South Africa has also taken precautionary Chinese Nationals who are holders of
measures and introduced a temporary temporary residence visas which have
visa concession for Chinese nationals already expired since 1 December 2019,
currently holding visitors visas and and those which will be expiring by
temporary residence visas, in light of the 29 February 2020, will be allowed to
corona virus outbreak. submit renewal applications for those
expired visas without the need to first
It has been communicated that until
legalise their status in South Africa (form
further notice, Chinese Nationals whose
20-authorisation for an illegal foreigner
visitor’s visas have already reached
to remain in the Country pending an
the maximum validity period, will be
application for status).
13 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
The Coronavirus and the workplace: #coughcoughsneeze?
In light of the Coronavirus (COVID-19) pandemic, it has become increasingly important for employers to develop
strategies and procedures and to reconsider their workplace policies so as to better protect both employees and
clients. The varying sources and confusing statistics have made it more incumbent on employers to adopt a radical
approach to dealing with the virus.
Managing the risks associated with Despite the absence of reported internal 2.2. Encourage regular and thorough
contracting the virus has not only transmissions, precautionary measures hand-washing by all employees,
affected the way employees engage with still need to be put in place especially clients and contractors:
each other, but has also affected the ways in the workplace where employees are
2.2.1. Put sanitising hand rub
in which employees engage with their susceptible to contracting to virus due
dispensers in prominent places
clients, especially in a corporate setting. to close contact with other employees
in the office. Examples of such
The Occupational Health and Safety Act and clients.
places include elevator buttons,
85 of 1993 places several obligations on
Preparing the workplace for COVID-19 bathrooms, frequently used
both employers and employees to ensure
doors, printing rooms, and
a safe and healthy working environment. Firstly, follow the advice from authorities
kitchens;
in your community.
What we know so far:
2.2.2. Display posters promoting hand-
∞ as of Tuesday 10 March 2020, 1. How Covid-19 spreads –
washing in all bathrooms and
3,642 people have been tested for COVID-19 spreads in a similar frequently used pathways;
the virus in South Africa; way to the flu. One can catch
2.2.3. Use routine meetings and
∞ the total number of coronavirus cases COVID-19 by the following:
communications to reinforce
in South Africa is now at 13;
1.1. Touching contaminated surfaces the importance of regular
∞ all 13 cases in the country have been or objects, and then touch your hand-washing;
diagnosed in patients who have eyes, nose or mouth;
travelled out of South Africa and have 2.3. Promote good ‘respiratory
returned to the country with the virus; 1.2. By standing within one meter of hygiene’ in the workplace:
an infected person – you stand a
∞ thus far, there have been no reported 2.3.1. Encourage employees and
chance of breathing in droplets
internal transmissions; clients to sneeze into their bent
coughed out or exhaled by them.
∞ the number of people the 13 patients elbows;
have come into contact with has been 2. Ways of preventing the spread
2.3.2. Make tissues readily available.
a mere estimation; and of Covid-19 in the office
Encourage employees to
environment:
∞ the regions in which the patients cough/sneeze into these. Make
have been diagnosed are 2.1. Wipe down surfaces (desks; sure that this is accompanied by
Gauteng, Kwa-Zulu Natal and the counters) and objects closed bins for safe disposal.
Western Cape. (telephones; keyboards;
stationary) regularly with
disinfectant regularly;
14 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
The Coronavirus and the workplace: #coughcoughsneeze?
2.4. Brief your employees on the 2.5.1.4. It is advisable to ensure that all 2.5.2.2. Provide tissues and a closed-bin
symptoms of COVIC-19 and what parties (participants, caterers should any participants need to
they should look out for. Advise etc) provide contact details. cough or sneeze;
that they seek medical attention Communicate clearly that their
2.5.2.3. If possible, open windows
should they develop symptoms. details will be shared with local
and doors.
authorities should any parties
2.5. Considerations when organising
show symptom and the need 2.5.3. After the meeting:
meetings and events:
thereof arise.
2.5.3.1. Should the need arise, keep
2.5.1. Before the meeting:
2.5.1.5. Ensure that all parties to the the names and contact details
2.5.1.1. Consider whether a face-to-face meeting are aware of the ‘no of all participants for at least
meeting is necessary, or handshake’ policy. It may be one month. This is in the event
whether it can be replaced by a useful to inform parties of this that public health officials need
teleconference or internet-based policy prior to the meeting. to contact participants if one
meeting; participant develops symptoms.
2.5.2. During the meeting:
2.5.1.2. Could the meeting be scaled
2.5.2.1. Try and seat each participant
down? Is everyone invited
at least 1 metre away from
absolutely essential?
one another;
2.5.1.3. Pre-order supplies such as
tissues and hand-sanitizer for
all participants.
15 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
Important developments impacting occupational health and safety
in the wake of COVID-19
On 15 March 2020, the COVID-19 pandemic was declared a national disaster given its magnitude and severity.
The impact is being felt in South Africa, but swift measures are being taken to co-ordinate and manage this
health hazard.
In this past week, the National Disaster These Regulations, in the same way as of appropriate personal protective
Act Regulations were published and the OHS Act, do not apply to the mining equipment (PPE), adherence to guidelines
relief provided for small and distressed industry as those employers are covered governing best practice around hygiene
employers in terms of the UIF Fund, by different legislation. The Minister and health.
for example, a reprieve where such of Mineral Resources and Energy can
The mechanism of the risk assessment is
employers could apply to be exempted declare that any provision of the OHS Act
critical to identify areas of work that pose
from making contributions to the Fund. or regulation will apply, but this would
a risk of contamination and to determine
It also provides benefits for employees be unprecedented.
how those risks might be eliminated,
who are required to self-isolate for a
What type of workplaces fall under controlled or reduced.
14-day period.
the Regulations?
Notice on Compensation for
On 20 March 2020, two further important
Workplaces where an HBA would Occupationally-Acquired Coronavirus
steps were taken by the Minister of
normally be encountered are: Disease (COVID-19) under COIDA
Employment and Labour, namely:
∞ in-food production plants (the Notice)
1. an appeal to employers to take
∞ sewerage purification plants The Notice extends compensation
guidance from the Hazardous
∞ where there is contact with products under COIDA to occupationally acquired
Biological Agents Regulations in
of an animal origin COVID-19 if it is contracted by an
terms of the Occupational Health and
employee arising out of and in the course
Safety Act, 85 of 1993 (the OHS Act); ∞ diagnostic laboratories etc.
and scope of his/her employment.
and
In relation to other types of workplaces,
What test is applied to establish
2. a Notice issued by the Compensation these Regulations have incidental
an occupationally-acquired
Commissioner in terms of the application.
COVID-19 diagnosis?
Compensation for Occupational
What is an HBA?
Injuries and Diseases Act, 130 The following factors have relevance:
of 1993, as amended (COIDA), It includes different types of ∞ occupational exposure to a known
making COVID-19 a compensable viruses, bacteria and parasites. The source of COVID 19;
occupational disease if contracted “coronaviridae” is included under the
∞ a reliable diagnosis of
by an employee arising out of and in category of viruses.
COVID-19 per the World Health
the course of his or her employment
What are some of the relevant Organization guidelines;
(occupationally acquired COVID-19)
components of the Regulations of use ∞ an approved official trip and travel
The Hazardous Biological Agents to employers combatting the spread history to countries and/ or areas
Regulations of COVID-19? of high risk for COVID-19 on
To whom does it apply? The nature of many businesses is such work assignments;
that work cannot be performed remotely.
It normally applies to those employers
In these instances, the focus is on
whose business it is to produce,
reducing the role of the virus spreading.
process, use, handle, store or transport
a hazardous biological agent (“HBA”) These Regulations are useful, for
in the normal course of business. It is example, the requirement to share
an incidental measure where an event information and provide training in
occurs that does not involve a deliberate consultation with health and safety
intention to work with an HBA, but where committees, raising awareness of
the potential to result in inadvertent the risks of an HBA, adherence to
exposure occurs. workplace instructions, provision
16 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
Important developments impacting occupational health and safety
in the wake of COVID-19
∞ a presumed high-risk work ∞ High exposure risk occupations The overall test for benefits is whether
environment where transmission of include healthcare delivery and there is a confirmed diagnosis of
COVID-19 is inherently prevalent; and support staff, medical transport temporary total disablement, for a
∞ a chronological sequence between workers and mortuary workers. period not exceeding 30 days, or
the work exposure and the onset of ∞ Medium risk occupations involve permanent disablement.
the symptoms. those persons who require frequent What does the employer have to pay?
close contact (within two meters) of
The Notice is aimed primarily at ∞ The employer is obliged to pay the
other persons who may be infected
employees who are engaged in very first three months compensation
with COVID-19.
high risk or high risk occupations. The and thereafter seek a recoupment
categories set out in the Notice are ∞ Low risk occupations involve from the Compensation Fund or
as follows: persons who do not require recognised mutual association.
contact with other persons known There are limits that apply.
∞ Very high risk occupations include
to be or suspected to be infected
healthcare workers including doctors, ∞ Sick leave entitlements under the
by COVID-19.
nurses and hospital staff, healthcare BCEA would still apply.
or laboratory personnel collecting However, the emphasis remains on ∞ UIF sick benefits remain a
or handling specimens from known whether or not the employee suffered separate entitlement.
or suspected COVID-19 patients an occupationally-acquired case
and morgue workers involved in of COVID-19.
performing autopsies etc.
17 | EMPLOYMENT ALERT March 2020Employment Survival Guide
Know your employment rights
COVID-19 and pregnancy in the workplace
A pregnant woman is for all intents and purposes, the agent and carer of her unborn child. The pertinent question
is to what extent employers should take this into consideration when providing a safe and secure work environment
for its employees? In light of the COVID-19 pandemic, should employers be doing more to protect and safeguard
pregnant employees (and the unborn children) at this time?
In terms of the common law, an employer during the COVID-19 pandemic. Some Given the potential vulnerability of
has a duty to provide a safe working practical considerations to be adopted pregnant employees and the duty of the
environment for its employees. This is by employers aiming to accommodate employer to provide a safe working space
further qualified by the legal obligation pregnant employees in the workplace are for all employees, employers should
of an employer to maintain a working as follows: consider further means of giving effect to
environment that is safe and healthy, their legal obligations towards pregnant
1. Allowing pregnant employees to
as determined by the Occupational employees, especially in the context of
work from home if this is possible in
Health and Safety Act 85 of 1995 (OHS the COVID-19 pandemic.
terms of the employer’s operational
Act). Similarly, the Basic Conditions of
requirements; Lastly, given the recent amendments to
Employment Act, 75 of 1997 (BCEA)
the BCEA regarding parental leave, the
expressly provides for the protection of 2. Affording pregnant employees
same additional considerations should
employees before and after the birth of additional leave benefit on a quid pro
be applied in respect of same sex and
a child, in that no employer may require quo basis. This would mean that the
adoptive parents, to the extent applicable.
or permit a pregnant employee (or an employee would agree to take a form
employee who is nursing her child) to of additional paid leave, and work it
perform work that is hazardous to her back at a later stage;
health or the health of her child.
3. If the employer’s operational
Given the above legal obligations requirements require a pregnant
imposed on employers, while the effects employee to attend the premises
of COVID-19 on pregnant women and of the employer, employers could
their unborn children remain largely consider providing a safe and isolated
unknown at this stage, employers space within the office premises in
should be encouraged to “go the extra which the pregnant employee can
mile” when considering the health fulfil her duties whilst ensuring her
and safety of pregnant employees health and safety.
DISCLAIMER:
The Employment Survival Guide is an informative guide covering a number of topics,
which is being published purely for information purposes and is not intended to
provide our readers with legal advice. Our specialist legal guidance should always
be sought in relation to any situation. This version of the survival guide reflects our
experts’ views as of 25 March 2020. It is important to note that this is a developing
issue and that our team of specialists will endeavour to provide updated information
as and when it becomes effective. Please contact our employment team should you
require legal advice amidst the COVID-19 pandemic
18 | EMPLOYMENT ALERT March 2020OUR TEAM
For more information about our Employment practice and services, please contact:
Aadil Patel Hugo Pienaar Anli Bezuidenhout
National Practice Head Director Senior Associate
Director T +27 (0)11 562 1350 T +27 (0)21 481 6351
T +27 (0)11 562 1107 E hugo.pienaar@cdhlegal.com E anli.bezuidenhout@cdhlegal.com
E aadil.patel@cdhlegal.com
Gillian Lumb Thabang Rapuleng Sean Jamieson
Regional Practice Head Director Senior Associate
Director T +27 (0)11 562 1759 T +27 (0)11 562 1296
T +27 (0)21 481 6315 E thabang.rapuleng@cdhlegal.com E sean.jamieson@cdhlegal.com
E gillian.lumb@cdhlegal.com
Jose Jorge Michael Yeates Bheki Nhlapho
Director Director Senior Associate
T +27 (0)21 481 6319 T +27 (0)11 562 1184 T +27 (0)11 562 1568
E jose.jorge@cdhlegal.com E michael.yeates@cdhlegal.com E bheki.nhlapho@cdhlegal.com
Fiona Leppan Avinesh Govindjee Asma Cachalia
Director Consultant Associate
T +27 (0)11 562 1152 M +27 (0)83 326 5007 T +27 (0)11 562 1333
E fiona.leppan@cdhlegal.com E avinash.govindjee@cdhlegal.com E asma.cachalia@cdhlegal.com
Tamsanqa Mila
Associate
T +27 (0)11 562 1108
E tamsanqa.mila@cdhlegal.com
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in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.
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