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COVID-19: Work during the lockdown

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.

Caveat

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.

 

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COVID-19 Updates in lockdown regulations 01 April 2020

Minister of Transport, Fikile Mbalula, has issued a series of updates to the regulations in action during the national lockdown to facilitate better access to transport to vulnerable persons in response to citizens having difficulty finding transport to collect social grants.

According to government gazette 43183 (30Mar2020), “Busses and taxis shall be permitted to operate from 05h00 to 20h00 in order to cater the transport needs of South Africans most vulnerable which is effective from 30 March 2020 until 03 April 2020.”

A further amendment extends the period of validity for driver’s and vehicles for the period of the lockdown, and further 30 days grace period from the date of the end of the lockdown period. Motor Trade number licenses are extended a grace period of 6 months from the date of the end of the lockdown period. Licensing and vehicle test centres will remain closed for the lockdown.

The designation of essential workers have also been extended to include:

  • Tollgate operators
  • Road Emergency operators
  • Employees responsible for safe operation of the roads
  • Rail logistics operators

Government gazette 43186 (30Mar2020) grants a grace period to taxis to proceed to and from the pick-up points an hour before the designated times, without loading passengers, as set out in the Disaster Management act. Taxis are permitted to collect and return essential workers from 05h00 to 10h00 and 16h00 to 22h00. The amendment continues to say that private institutions or companies may plan transport for their essential workers (as listed in Annexure B of the Disaster Management act) to be in line with operating shifts and work time schedules. These operating shifts or work schedules must be stamped and signed by the responsible person.

This amendment also increases the permitted load capacity of minibus taxis to 70 % where no masks are required, meaning a taxi with a licensed capacity of 10 persons may carry 7, a capacity of 15 may carry 10 and a capacity of 22 may carry 15. In all cases the allowed number of persons in the vehicle includes the driver. A vehicle licensed for 4 persons is still limited to a 50 % permitted load capacity, meaning only 2 persons may be in the vehicle including the driver. However, during the lockdown period a minibus taxi will be permitted to carry a full load as licensed provided all persons in the vehicle is wearing either a surgical or N95 mask.

Government Gazette 43189 (30Mar2020) extends the ban on all local and international flights irrespective of the risk status of the country of origin except where granted specific permission by the Minister of Transport to evacuate South African citizens in foreign countries. Repatriation is allowed only where the foreign countries charter an aircraft to South Africa without passengers but with a crew – whom will not be allowed to disembark the plane in South Africa. South African citizens who wish to return to the country during this time will be permitted to do so provided:

  1. They have a fully paid return flight ticket, and
  2. They will submit to a mandatory quarantine period of up to 21 days.

The following technical flights are allowed:

  1. Medical Evacuation flights – these flights should not carry passengers except patients and crew who, upon disembarking, will be subject to the mandatory quarantine laws as are applicable.
  2. Aircraft in a state of emergency
  3. Overflights
  4. Technical landings for refuelling – these flights are allowed provided no passengers are allowed to disembark the plane.
  5. Aircraft operations related to humanitarian aid, relief flights and other safety related operations.

The following airports must have operation staff on standby to receive aircraft in distress:

  • Port Elizabeth
  • Bram Fisher
  • Upington
  • Polokwane
  • Kruger Mpumalanga

Flight Cargo crew will be permitted to disembark on the condition that they will be subject to quarantine laws as applicable.

Government Gazette 43183
Government Gazette 43186
Government Gazette 43189
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COVID-19: Documentation for essential services employees

In terms of the Government Gazette, dated 25 March 2020 No. R 398 Disaster Management Act, 2002: Amendment of Regulations issued in terms of Section 27 (2) please find attached the list of essential services  industries which will be permitted to work during this nation lock down period commencing 26 March 2020 at 23:59.

Please be advised all persons employed at essential services, such as supermarkets, chemist’s, hospitals, etc. must always have a letter on their person which must comply with the following:

  1. The letter must be an original official document on company letter head.
  2. The full name/’s, Surname, ID number and address of employee.
  3. The employer’ s name and address.
  4. Business hours of the company.
  5. Name and contact number of Manager / Director.
  6. Original signature of Manager / Director.

This letter and ID/Drivers licence (any form of ID with a photo) must always be in possession of the employee.

If an essential company employs cleaners or security personnel, they must have the same letters from their companies.

If the company has a contract with a transport provider, that transport provider must also be in possession of a letter to state that reason.

Nurses and security personnel with appointment certificates which have a photo displayed may also use it as proof of identification.

KINDLY NOTE THAT WE WILL REMAIN OPERATIONAL AND AVAILABLE AT ALL TIMES THROUGH THIS NATIONAL LOCK DOWN. YOU ARE WELCOME TO CONTACT US AS USUAL FOR ANY ASSISTANCE ON ALL MATTERS INCLUDING CLARITY ON THE ABOVE.

List of essential services  industries (PDF):