Since the start of the national lockdown in response to the spread of the Coronavirus, and in an effort to limit the occurrence of the COVID-19 illness it causes, the question of whether or not an employee in an essential service can be instructed to work during this time has persisted. This question has now been extended as some call centres and mines are permitted to operate after the announcement of the extended lockdown regulations and amendments by Minister Nkosazana Dlamini-Zuma on 16 April 2020.
The short answer is: Yes
If you are an employee, as defined by Section 213 of the Labour Relations Act (LRA) of an essential service provider (whether you are an essential service provider or work in a supportive role to an essential service provider) or of a company providing essential services as gazetted by government (including amendments) that is permitted to work during this time then an employer may require an employee to work.
Section 213 of the LRA defines an Employee as:
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer, and “employed” and “employment” have meanings corresponding to that of ”employee.”
Further, the provision includes for the services provided by individual (ordinary citizen) employees during the lockdown that are essential to the operations of the essential service provider. Such employees may include, but are not limited to, support or administrative staff.
Ordinary citizen employees, employed as support or administration staff, may well be in breach of their employment contracts if they refuse to work during this time, however as the national lockdown was declared in order to decrease the spread of an infectious disease in COVID-19, they may have a justifiable defence against disciplinary action taken for absence from work where no alternatives were considered.
An employee may, in terms of the Basic Condition of Employment Act, Section 20(10), request to take their annual leave if in accordance to the agreement between the employer and the employee. However, section 10 makes provision that both the employer and the employee must agree on when annual leave is taken and where there is no agreement the annual leave must be taken at a time that suits the employer. Legally, an employer may thus reasonably deny an annual leave application.
Conversely, should the employee refuse to report to work at an essential service provider during the lockdown for fear of contracting the COVID-19 illness, the employer may agree to grant the employee permission to be absent from work by requiring the employee to take annual leave during this time. Should an employee have no annual leave available, s/he may be permitted to take unpaid leave.
Health and Safety
The Occupational Health and Safety Act, No. 85 of 1993 requires every employer to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of their employees. It is not, however, the sole responsibility of the employer to ensure the health and safety of the working environment. Employees share this responsibility and any risks or dangers must pro-actively and in good faith be addressed through communication and cooperation between both parties.
This means that an employee has a duty to inform his or her employer of their COVID-19 status, as well as the risk of having been exposed to a COVID-19 positive person in order for the employer and the government to take the appropriate measures. An employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.
However, it is critical to keep in mind the regulations under the Disaster Management Act 2002, section 11(5), that it is a criminal offense to “publish a statement through any medium with the intention to deceive about COVID-19, anyone’s COVID-19 infection status …” The threshold for this offense is the ability to prove that the statement was made with “intention to deceive”. A false claim by an employee to have been infected by COVID-19 in order to not report to work have yet to be tested under law but caries with it the risk to an employee of more than a disciplinary sanction.
Travel and Transport
The employer must provide every employee required to work during the lockdown with a permit to travel to and from work. Employees travelling to and from work must at all times carry this permit with them, along with photo ID. Employees who do not have this permit may refuse to travel to work.
Should an employee not have access to transport to be able to attend to work due to the prohibitions placed on public transport during the lockdown, the employer is responsible for making the necessary transport arrangements for the employees in accordance with the regulations stipulated for all forms of public transport.
With South Africa currently under a declaration of a National Disaster, some questions remain regarding the constitutionality of mandatory testing and a person’s right to refuse.
There are some who hold the view that being obligated to be tested is a violation of his or her constitutional right. However, under the National Disaster proclamation, certain limitations on constitutional rights are viewed to be both fair and just.
The Department of Co-operative Governance and Traditional Affairs published regulations determining that a person who is suspected to have Covid-19, or who has come into contact with someone who has Covid-19, may not refuse to be tested or quarantined. A warrant may be used to force compliance if a person refuses to be tested or quarantined.
In terms of workplace health, according to a document published by the Information Regulator of South Africa dated 03 April 2020, employers can force their workers to be tested for the SARS-CoV-2 virus behind Covid-19 illness.
In “GUIDANCE NOTE ON THE PROCESSING OF PERSONAL INFORMATION IN THE MANAGEMENT AND CONTAINMENT OF COVID-19 PANDEMIC IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013 (POPIA)” which focusses on the protection of personal information gathered for the purpose of containing the spread of COVID-19, a section deals with the question of consent and workplace obligation under Sections 6 and 7:
6.1 Can the employer request specific information on the health status of an employee in the context of COVID-19?
Yes, the employer is obliged to maintain a safe and hazardous free working environment in terms of the Occupation Health and Safety Act 85 of 1993 read together with the Employment Equity Act 55 of 1998, if an employee’s health status may endanger other employees. The disclosed information should not be used to unfairly discriminate against such an employee.
6.2. Can the employer force an employee to undergo testing for the COVID-19 virus?
Yes, the employer can force an employee to undergo testing in order to maintain a safe working environment.
7.1. Can a data subject refuse to give consent to be tested for COVID-19?
No, the Regulations require any data subject to undergo mandatory testing in order to manage the spread of COVID-19.
Furthermore, section 8 addresses the mutual responsibility of an employee to maintain a safe working environment by disclosing their COVID-19 positive status to their employer:
8.1. Does a person who has tested positive for COVID-19 have a duty to disclose his or her status?
Yes, a person who has tested positive has a duty to disclose his or status to enable the Government to take appropriate measures to combat the spread of COVID-19.
Thus, an employer may obligate an employee to be tested for COVID-19, and under the regulations of the National Disaster Act, the employee can legally be forced to comply.
Updated and amended regulations to address issues regarding transport, essential goods and the tracking of the coronavirus was signed and gazetted by Minister Nkosazana Dlamini-Zuma on 02 April 2020.
The changes include:
- Provision for certain individuals to be allowed to travel between provinces, metropolitan areas and districts for the purpose of transporting mortal remains for burial.
- A process by which persons who wish to travel between provinces, metropolitan and districts to attend a funeral or cremation can obtain a permit, provided they are:
- The spouse or partner of the deceased.
- Children of the deceased, whether biological, adopted or stepchildren.
- Children-in-law of the deceased.
- Parents of the deceased whether biological, adopted or stepparents.
- Siblings, whether biological, adopted or stepbrother or sister of the deceased.
- Grandparents of the deceased.
- Persons closely affiliated to the deceased.
- The creation of a confidential national database that will allow for the tracing for people who has, or who have been in contact with someone who has the coronavirus.
- The database will collect personal information on persons when they are tested.
- Government may also request information from electronic communications service providers such as mobile networks and ISPs, including location and movement.
- The database will include (but is not limited to) the following information:
- First name
- Last name
- Identity/Passport number.
- Residential address.
- Work address/Other addresses where they could be located
- Cell phone number
- Covid-19 test results
- The personal details of all known or suspected contacts of a person who has tested positive for the virus.
Spaza shops and informal traders
- Grocery stores and wholesale produce markets, including spaza shops and informal food traders, may operate but must obtain a permit from a municipal authority to operate.
These changes are gazetted in the Government Gazette 43199 on 02 April 2020, please follow the link for the full publication.