Covid-19, Employees & Employers
Over the last few days, the enquiries regarding rights and responsibilities of employees and employers with regards to the Covid-19 Pandemic has exponentially increased to the extent that everyone is seeking frantically for answers to the challenges that may arise from the employment relationship as a result. My considered views on the matter would not necessarily be new information available, but information made available to those within our direct followership and customer base.
Covid-19 and the pronouncements by the President on 16 March 2020 hold very specific obligations to everyone within the country. All of us, being employee or employer have the obligation to support and assist with the eradication of the Corona outbreak.
At this stage, various legislation regulates employment relationships within the Covid-19 context. These include,
- The Constitution, especially the Bill of Rights
- Basic Condition of Employment Act
- Compensation for Occupational Injuries and Diseases Act
- Labour Relations Act
- Any company policy applicable
The South African Constitution
The Constitution provides for Equality, Human Dignity, Life and Freedom and security of the person within the Bill of Rights. Businesses, therefore, have an obligation to consider all of these aspects when formulating responses to Covid-19. People have rights, but we all also have obligations towards each other. Companies are especially at risk of failing the security or life of employees if a large number of employees suddenly contract the virus. In this instance there is an obligation to follow up on each case identified with due consideration to the dignity of the affected individuals.
Basic Condition of Employment Act
Whilst the BCEA provides in common cause understanding for No-Work No-Pay conditions, those employers who have additional policies of special leave, or special conditions considerations have to consider extending those to cover the Corona Virus requirements. The key mitigating factor, as expressed in many forums is self-isolation. Self-isolation is suggested as the most effective measure, but whether it is introduced by the business, or requested by the employee, how does one contemplate the economical/financial impact of the business. Surely the measures put in place must consider sustaining a viable business in the end.
The dynamic for business revolves around mainly 2 factors, being affordability & sustainability of the business and social well-being of their employees. Besides the standard leave options of Annual Leave or Sick Leave, we currently have no legislation that exists to direct employers to pay employees who do not / cannot come to work as a direct result of the outbreak of Corona. Employers would be well advised to initiate internal discussions within their Workplace Forums or Unionised Channels to explore potential options and solutions of either forced or self-imposed isolations. Time to brush up on those Employee Assistance Programmes, Update them and Train employees to assist with identification and support of people in high risk categories. Also do not forget to monitor pronouncements from NEDLAC of the Ministry of Labour who may very well promulgate latest binding decisions on the matter.
Occupational Injuries and Diseases Act
The provisions of Occupational Injuries and Diseases Act will come into effect once an employee is infected or alleged to have been infected at work, or as a result of the execution of their duties. In these instances, channels and processes already exist which in addition to the standard responses to Covid-19 should also be followed.
Labour Relations Act
Any discussion about scaling down the business or reducing working hours due to the economical impact of the Covid-19 outbreak must be dealt with in terms of the Labour Relations Act. Pronouncements or measures by the government do not automatically give employers rights to deviate from the requirements of labour law. South Africa has extremely stringent rules protecting employees, and as such, it would be important to continue to follow all protocols. Do not take for granted that employees should know the situation. Ensure that you engage, outline the steps, and follow the Codes of Good Practise.
General Comments
As indicate earlier, some businesses have internal policies more favourable than the provisions of Labour Legislation. In this regard, it is important to know that you may not now unilaterally reduce your liability because of the economical or social impact of Covid-19. Consider as many alternatives as possible, be it, paid time off for employees for situations of high risk, or flexible working hours to accommodate the need for parents to be home with schools closing. Ultimately the test for businesses and their employees now is to see if the company you work for is really one who cares for their employees as many times claimed and if the employees you have really cared for the company not to allow it to go to ruin with unrealistic demands during this time. The ultimate aim is for everyone to ensure and return to a viable business.
I believe this to be a real and substantial test for Business Owners, Leadership and Employee Representatives. Some businesses have to change the way they provide their services, like a restaurant who now goes online, or a manufacturing plant now open for extended hours to minimise the amount of staff members on site at any time. It is time for the Business Continuity Plans to be tested, and typically a new High-level Risk is registered on the Corporate Risk Register and mitigating responses have to consider all of these aspects in addition to the normal employment rules. We all have a legal duty of care to take whatever measures necessary.
Please also only follow reliable links to information specific to South Africa
SA Official Website : www.sacoronavirus.co.za
Whatsup No : 0600 123456
Joe February
https://Arenaps.co.za