31 Mar Know your employment rights during the lockdown
A national lockdown in the face of a global pandemic of this nature is unchartered territory in South Africa, naturally causing much consternation and uncertainty among many, particularly in employment relationships. Here are 5 things that every employee and employer should know during the lockdown.
5 THINGS THAT YOU NEED TO KNOW AS AN EMPLOYEE
- Are you entitled to a salary during the lockdown?
If you and your employer have agreed that the nature of your work makes it possible for you to work effectively from home, then you are entitled to a salary as per normal. During such an arrangement, your employer has a reasonable expectation that you will be accessible and available for communication by telephone and/or email, and that all agreed to deliverables will still be met.
If the nature of your work constitutes an essential service, then your employer may require you to work from the usual place of work provided that he/she/they put/s precautionary measures in place to ensure your safety. In such an instance, you will be entitled at a salary as per normal.
If you have a health condition that compromises your immune system, then you can enter into an arrangement with your employer to render services from home even if your work constitutes an essential service. Of course, this will only apply if the nature of your work is such that it can be completed while working from home. If the nature of your work does not allow you to work from home, then you need a special arrangement with your employer – for example, take extended sick leave with the permission of your medical practitioner, or take another appropriate category of leave. Where possible, reasonable accommodation is required.
- When I work from home, do I need to be available at any time of the day and week?
No, when you work from home, your employer may reasonably expect you to only be available and accessible only during your normal working hours – that is, as per your usual arrangement. If there is an urgent matter that requires your attention, then the employer may reasonably expect you to be available beyond the normal working hours.
- Am I entitled to overtime pay when I work from home during the lockdown?
In the first instance, this depends on your employment contract, whether you earn above or below the earning threshold of R205 433.30 per annum, and any applicable collective agreements. Your overtime hours may be difficult for the employer to monitor. It is advisable that you first consult with your employer to ascertain his/her/their position on this. If you are entitled to overtime pay, ensure that you keep a strict log of your overtime hours.
- Can my employer force me to take unpaid leave or annual leave during the lockdown?
Yes, as the Basic Conditions of Employment Act 75 of 1997 allows employers to determine when employees can take their annual leave. On 26 March 2020, the Department of Employment and Labour issued a directive stating that employers are well within their rights to insist that employees take annual leave during the lockdown (http://www.labour.gov.za/directive-on-covid-19-implications-on-bcea-leave-provision).
The CEO of the National Employers Association of South Africa, Gerhard Papenfus, has indicated that it is a reality that many employers may decide to place their employees on annual leave, and exchange this leave period with the normal December shutdown period, if possible and feasible. This option may be seen as the lesser of the two evils when compared to the option of placing staff on unpaid leave.
However, the Director-General of Employment and Labour Department has urged employers to not force their employees to take unpaid leave or annual leave during the lockdown, as the lockdown is not attributable to the employee’s fault, but an instruction from the President. Instead, government requires employers to access the special Unemployment Insurance Fund (UIF) benefits that have been put in place to accommodate the financial burden of the lockdown.
This benefit ensures that employees receive some level of income during this time, which varies from the national minimum wage of R3 500 per month to a maximum of R17 000 per month. This special UIF benefit will apply from the 1 April 2020. During this period, while receiving this special UIF benefit, employees will still be regarded as employees.
It is important to note that the normal UIF credit system, whereby your UIF benefit is based on the number of months that you have been employed, does not apply.
Lastly, employees who are working from home cannot be forced to take leave during the lockdown.
- How do I access further information on this special UIF benefit?
Employers and employers should call the following hotline number for more information: 012-337 1997, or send an email to [email protected].
An employee needs to claim for the special UIF benefit on the behalf of the employee if that employer that prove that it has been compliant with the relevant statutory requirements.
5 THINGS THAT YOU NEED TO KNOW AS AN EMPLOYER
- Are employers responsible for the health and wellbeing of their employees? If so, why?
Yes. Employers have a legal obligation to ensure the wellbeing of their employees while working. Employers have the common law duty of care, and duty to provide a safe working environment. Also, employers are, according to the Occupational Health and Safety Act 85 of 1993, required to provide and maintain, as far as is reasonably practical, a working environment that is safe and without risk to the health of its employees. The employer’s duty of care applies when an employee is working at his/her/their workplace, or even traveling for work-related reasons.
However, if employees will be working from home, employers will not be responsible for their health and safety. Employees must exercise care.
- How do I decide whether, or not, to allow my employees to work from home?
Each employer must first determine whether the work performed forms a part of what is considered “essential services”. Essential services include grocery stores, essential municipal supplies and those in medical and health services. The full list of essential services can be accessed on the following website: https://www.gov.za/Coronavirus/essential-services).
If the answer is no, then an employer needs to decide whether the nature of work is such that employees can still continue and complete the tasks while working from home. If the work can be done from home, then the employer must allow employees to do so, as any attempt to travel for work may see the employers being held in contravention of the government’s regulations.
Businesses must to apply to the Companies and Intellectual Property Commission (CIPC) through its Bizportal website (http://www.bizportal.gov.za/) to obtain a certificate from the CIPC that allows them to continue trading as an essential service.
If the work is considered to be an essential service, then the employer must determine which of their operations may be conducted remotely – that is, away from the office – and which actually requires employees to be physically present on site.
- If my employees come to work to render essential services, what precautionary measures can I implement to ensure their safety?
The Department of Employment and Labour has issued guidelines for employers on how to deal with Covid-19 in the workplace. These guidelines include, amongst others, ensuring employees have the correct and required Personal Protective Equipment (PPE), such as sanitizers, gloves, goggles, face masks, and face shields.
Details on these guidelines can be found using the following: http://www.labour.gov.za/DocumentCenter/Publications/Occupational%20Health%20and%20Safety/COVID-19%20Guideline%20Mar2020.pdf.
For more information, contact Teboho Thejane, the Departmental Spokesperson:
Mobile: 082 697 0694
Email: [email protected]
- Can I force my employee to undergo a test for Covid-19? If so, can I compel that employee to disclose his/her/their status to me?
No. According to the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions, the head of an institution who is aware, or reasonably suspects, that a person at the institution is a carrier of a notifiable medical condition, or was in contact with a carrier of a medical condition, must report to the nearest health establishment.
Generally, information regarding a case, contact, or a carrier of a notifiable medical condition is confidential, unless the disclosure is for public health surveillance, investigations and interventions. In the instance, disclosure of such a medical condition would be in the interests of public health and safety.
Any person suspected of being a carrier of Covid-19 must immediately consult his/her/their general practitioner, who will then determine whether to refer that person to Lancet Laboratories (or other designated testing station) for a Covid-19 test.
- What is the scope of my liability if my employee contracts Covid-19 while working?
The Department of Employment and Labour has issued a Notice on Compensation for Occupationally-Acquired Novel Corona Virus Disease (Covid-19).
In terms of the Notice, the Compensation Commission will make payment for temporary total disablement for confirmed cases as long as the disablement continues, but not for a period exceeding 30 days. In respect of suspected or unconfirmed cases, the employer will be responsible for remuneration for the days of absence. In the case of permanent disablement, the Commissioner has a right to assess each case on an individual basis to determine if there is any permanent disablement.
As a nation, collective responsibility is key to tackling Covid-19 head-on, and managing this period of disruption effectively. We are relying on every sector and industry to implement measures to give effect to the government’s directive, and, in so doing, put public safety, and the safety of one’s employees, ahead of profiteering.
Contact the Covid-19 National Hotline for any further queries: 0800 029 999.
To receive WhatsApp updates, text “Hi” to 0600 123 456.
The contents of this article is for information purposes only, and this article is not intended to be comprehensive and conclusive legal advice. For comprehensive legal advice on specific aspects arising from the impact of Covid-19 on your employment relationship, please, contact [email protected], [email protected], or [email protected].