Employers’ rights when coping with COVID-19 at the workplace

We know that employers must provide a safe workplace. But what are his rights, and what demands can he make on employees in implementing and managing the containment of the COVID-19 pandemic?

Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa

The facts show that the world is in the grip of COVID-19.

Since 27 March 2020 some employers have had no choice but to close their doors for periods during the height of the alpha and beta waves.

Others were compelled to place employees on leave or to allow some employees to work from home. Meetings were scheduled on virtual platforms. In instances where vulnerable employees could not work from home, safe workspaces away from other employees, were created.

These measures, however, provided a solution only in certain circumstances. Many other employees who provided essential services like, for example, members of the police force, health workers, cashiers in supermarkets, and funeral parlour or mortuary workers had to report for duty.

We know that the employer must provide a safe workplace. But what are his rights?

Requiring an employee to test and disclose

An employee cannot refuse to disclose information about his COVID-19 status in terms of the Protection of Personal Information Act (POPI). In terms of the guidelines issued by the Information Regulator employers may require an employee to take a COVID-19 test in the management and containment of the Covid-19 pandemic.

Clause 6 of these guidelines specifically deals with issues relating to employment, and states:

• that an employer can request specific information and force an employee to undergo testing if that employee’s health status in terms of COVID-19 might endanger the health of other employees;

In terms of clause 7 an employee cannot refuse consent to be tested for COVID-19 because the Regulations “require any data subject to undergo mandatory testing in order to manage the spread of COVID-19”.

Once the employee has tested positive, he must disclose this fact “to enable the Government to take appropriate measures to combat the spread of COVID-19”.

It goes without saying that the employer shall also be entitled to demand sight of a vaccination certificate.

Demanding that the employee must self-isolate

The employer can require employees to self-isolate when the employee believes that he was exposed to the virus.

Employers must be able to trust their employees to know that they will go for a Covid-19 test when they have had close contact (within 1½ - 2 meters for a total of 15 minutes or more over a 24-hour period) with someone with confirmed COVID-19, and will self-isolate while awaiting the result. The failure to do so may result in dismissal.

In the matter of Eskort Limited v Mogotsi and Others which was handed down on 28 March 2021, the Labour Court upheld the dismissal of an employee who failed to give effect to COVID-19 protocols at the workplace.

The employee, who was a manager and member of the ‘Coronavirus Site Committee’, had a reckless disregard for a policy which required employees to wear masks at all times, maintain social distancing, to report known symptoms associated with COVID-19, and to self- isolate or quarantine when necessary.

Although the employee knew that a fellow employee with whom he travelled regularly in a private vehicle had tested positive, and despite experiencing known symptoms as a consequence, he failed to self-isolate. He ignored being told on no less than two occasions to stay at home, and continued to report for duty “as if everything was normal”.

When he finally tested positive, he did not immediately disclose his test results and continued to come to work for about another two days. During this period, he hugged a fellow employee, and walked around on the shop floor without a mask.He not only

The court confirmed the dismissal.

Evaluate requests for paid sick leave

A question that frequently arises is whether an employer should grant paid leave to an employee who is away from the workplace for between 7 and 14 days while self-isolating. The reason for this uncertainty is that it is not clear whether such leave constitutes sick leave or special leave.

The jury is still out on this one but it would appear that it could relate to sick leave.   If the employer treats it as sick leave, the next question would be: What happens if an employee has exhausted his sick leave and becomes ill?

Regulation 6 of the revised Consolidated Directions on Occupational Health and Safety Measures issued on 11 June 2021 has provided some guidance in this regard.  If the employee no longer has sick leave left, the employer must assist the employee to lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993.

In essence this means that the employer shall not be required to pay the employee after he no longer has sick leave left and contracts COVID-19.

As time goes by, the rights of both employers and employees will become much clearer.

Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd