17 Mar 2020

Coronavirus: National Disaster- Effects on the Workplace

by Michael Maeso, Partner, Durban,
Practice Area(s): Employment |

President Cyril Ramaphosa has declared the coronavirus (Covid-19) outbreak a national disaster.

A range of steps were announced aimed at alleviating the crisis which includes a travel ban on visitors from a number of European countries including China and the United States. Gatherings of over 100 people are not advised.

The situation is dynamic, and advice may change as more information relating to the spread of the disease becomes available.

In the interim, we set out some workplace issues for consideration.

  • The Occupational Health and Safety Act requires every employer to keep a safe and healthy workplace. There is therefore a statutory obligation on the employer to manage the risk of infection in the workplace. These steps should include promoting regular hand washing and establishing principles around quarantine if required.
  • An employer should deny access to the workplace to any employee, supplier or visitor who displays the virus symptoms. We understand these symptoms to include; cough, high fever and a shortness of breath.
  • Those employees who have recently travelled to areas displaying a high level of infection or those exposed to these individuals should also be denied access to the workplace until they have exhausted the required quarantine period and have tested negative to the disease.
  • The period of absence from work may be treated in a number of ways. If the employee tests positive to the virus, then any period away from work will be sick leave and compensated in terms of the sick leave provisions set out in the BCEA.
  • Should the employee have exhausted the sick leave entitlement provided for in the BCEA, then the employer may consider converting the balance of the period of absence into annual leave and if that too is exhausted, the employer can either reach an arrangement with the employee in respect of payment or treat the period of absence as unpaid leave. These steps will be dictated by any sick leave policy in place at the workplace.
  • Should the employer impose a period of quarantine on the employee who has not yet tested positive but is at risk, then it is suggested that efforts should be made to allow the employee to work remotely in which case the employee continues to be paid as normal. If this is impossible then special leave can be agreed although this is not compulsory.
  • The Unemployment Insurance Act 63 of 2001 provides for the payment of illness benefits. The illness benefits will accrue to a contributor if the contributor is unable to work as a result of an illness and that application for benefits is made in the prescribed form. Section 13(3) of the UIA confirms that a contributor is eligible to receive one days’ benefit for every six completed days of employment up to a maximum of 238 days (34 weeks). To claim benefits for the maximum period, the contributor would have to be continuously employed for four years.

Employees do not want to come to work

If employees do not want to come to work for fear of infection, then the circumstances of the workplace must be taken into account before deciding on an appropriate reaction. The employer should exhaust the alternative of working remotely. If this is not possible and the workplace is one where the risk of infection is highly improbable, then any refusal to work can be taken as annual leave or unpaid leave. If the refusal to work is unreasonable, disciplinary action may be considered but given the uncertainty of the disease at this stage, disciplinary steps should be a last resort and must be carefully considered before implemented.

Closure of the workplace

If the workplace is forced to close its operation as a direct consequence of the virus and threat of infection, then the employer will have to deal with the question of payment of those employees in a sensible and practical manner.

The first step would be to ensure that employees are fully informed of the reason for the closure. Employees should be updated regularly to keep them abreast of the situation and the date upon which return to work is contemplated.

Usually employers are obliged to continue to pay its employees who continue to tender their services when the closure of the workplace is at the insistence of the employer.

However, the closure may amount to a common law force majeure or supervening impossibility of performance, which for the temporary period of the closure means that the employer is released from its obligation to pay its employees under the contract of employment. The period of closure will, in this event, be unpaid.

Force majeure occurs when through no fault of its own and through unforeseen circumstances, the employer is unable to fulfill its obligations in respect of the contract of employment.

Supervening impossibility of performance would occur when the law requires the business to close and as a result the employer cannot fulfill its obligations in respect of the employment contract.