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COVID-19: The Employer’s Response

Employment Law

The President’s announcement on Sunday, 15 March 2020 has left many in the business sector confused as to the implications of the National State of Disaster declaration in response to the COVID-19 threat.

It is important to keep in mind that under the Occupational Health and Safety Act it places an express obligation on an employer to maintain a working environment that is safe and free from risk to the health of employees as far as reasonably practical. With regards to the COVID-19 pandemic, it means proactive management and mitigation of contamination in the workplace will have to be implemented.

The Act does not place sole responsibility on the employer to ensure a safe work environment, and employee’s bear an equal responsibility to preserve and maintain workplace safety and health. One way an employer can share this responsibility is by ensuring the employees are well informed and educated on the COVID-19 virus.

Information crucial to the mitigation of workplace infection is knowledge of the symptoms of the disease to be able to identify in themselves or colleagues individuals who may have contracted the illness. These include:

• Initial symptoms mimic the Common Cold
o Fever
   o Fatigue
   o Malaise
   o Body Aches
• Dry Coughing
• Shortness of breath

COVID-19 is a highly transmissible illness. For this reason, it is important to contain the spread of the virus. Steps that employers can implement include:

• Educating employees on the symptoms and precautionary measures:
o When traveling on public transport, to avoid touching the eyes, mouth or nose with unwashed or non-sanitized hands, avoid waiting for transport in large groups and minimize the amount of time spent in public transport.
o Avoid public spaces as far as possible until further notice, including restaurants, clubs, gyms and to minimize time shopping. Also avoid large gatherings including weddings, funerals, christenings and family gatherings. Government has placed a prohibition of gatherings of 100 people of more, but strongly encourages any multi-person gathering in the interim.

• Implementing workplace hygiene policies including procedures in the workspace regarding:
o Hand washing
It is recommended that employees are directed to wash their hands at regular intervals, with liquid soap and warm water, for a minimum of 20 seconds.
o Maintaining social distancing
Implementing interim steps such as conference calling/video conferencing instead of in-person meetings, a moratorium on physical contact greetings such as handshakes and/or hugs.
o Actively requiring sick employees (whether from a Coronavirus infection or other) to remain at home.

• Implementing work-from-home strategies where possible.
o This will depend on the requirements of the business, and the practicality of employees working off-site. Measures to consider is the safety of the employee while working at home, reliability of connectivity (including phone and WIFI connections), suitability of the task to remote working and demands of team deliverables.

Sick leave, paid leave or unpaid leave?

Currently there have been no announcements changing the entitlements of sick leave. This means that the policies remain as they are at present and will be applicable as follows:

• Annual leave remains as is, with the entitlements as determined by law. Employers are advised to monitor the number of employees present and able to perform tasks maintaining the core business, and to consult
with employees planning annual leave should staff availability suddenly change due to illness. Importantly, employers may not force employees to take annual leave to self-quarantine if the requirement for quarantine
is ordered by the company. Companies who impose quarantine on employees need to provide paid special leave or arrange work-from-home where possible.

• Sick leave also remains as currently determined by labour law. In short this means:
o An employee is entitled to 30 days sick leave per 36-month cycle. Sick leave days cannot be limited to 10 days sick leave per year/12 months.
o An employee may take sick leave for 2 consecutive workdays without a medical certificate. An employer may request a medical certificate if the employee takes sick leave twice in an 8-week period.
o Sick leave may not be used for mandatory quarantine purposes.
o If an employee requires sick leave and their sick leave entitlement is exhausted, an employee may take annual leave, or if also exhausted, may be granted unpaid leave.

Operational Requirements

There is no doubt that the current outbreak will have far-reaching economic implications, and employers may find themselves facing ongoing challenges during the outbreak. Many employers have already started considering retrenchment in a pre-emptive move to curb losses.

Section 189 of the Labour Relations Act 66 of 1995 allows for an employer to dismiss one or more employees due to operational requirements. “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.

Retrenchment is a no-fault end of employment on the part of the employee. In the current circumstances, it cannot be used to terminate ill employees as the recovery/isolation period is 14 days. However, should many employees be absent due to illness, an operational need may arise.

Two scenarios that are already becoming problematic are:
1. Employees refusing to come to work in fear of contracting the virus
2. Business unable to operate due to stock shortage

In both scenarios, prudence is advised as employers are encouraged to accommodate employees without placing undue burden on the business. Employers may consider, after consultation with employees, to offer extended unpaid leave in both scenarios. In the case of stock shortage or other operational limits that may be deemed as short-term due to the outbreak, employers can consider activating short-time (shortening the work week) or part-time work at reduced pay. In all cases, employment is not terminated but resumption of full duties is made contingent on the requirements of the business as well as risk of infection to employees.

An employer considering disciplinary steps in the case where an employee is absent without leave for any length of time, where the employee alleges illness or quarantine, the  employer must use incapacity investigations and procedures to determine the veracity of the claims, and where found to be invalid, follow fair procedures to apply the correct sanction.

Should you need any additional advice or clarity please feel free to contact your Joblaw office.

We pray that you and your loved ones are kept safe and healthy through this time.

 

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The Perpetual Independent Contractor

Employment Law , , , ,

In South Africa a president has taken hold of the employment sector where employers engage the services of an employee without formalizing their relationship in a written contract, believing that in so doing they are circumventing the Labour Relations Act (LRA). This, they believe, makes their employees “Independent Contractors” and they are thus not liable for any protections and entitlements under the LRA.

It is important to note that in defining an “employee,” the act makes no mention of a “contractor” or anything other than an “employee.”

Section 1 of the LRA defines an “employee” as:

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 any other person, who in any manner, assists in carrying on or conducting the business of an employer.

Section 200A of the Act continues, stating that an employee is:

A person who works for, or renders services to, another person, is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present:

i. The way the person works is subject to the control or direction of another person,

ii. the person’s hours of work are subject to the control or direction of another person,

iii. in the case of a person who works for an organisation, the person is a part of that organisation,

iv. the person has worked for that other person for an average of at least 40 hours per month over the last three months,

v. the person is economically dependent on the other person for whom that person works or renders services,

vi. the person is provided with tools of trade or work equipment by the other person, or

vii. the person only works for or renders services to one person.

The independent contractor is not a contract of employment at all, rather it is a contract of work and can be defined as the hiring/letting of piece work in a mutual contract where the independent contractor undertakes to create, build or repair a material thing within a certain period in return for which the employer agrees to pay an agreed upon reward in return.

In South Africa, common law recognizes the distinction between a contract of service (where the party provides a service in subordination to the authority of the employer) and a contract for service (where the party provides a non-subordinated service only answerable to the service deliverables contracted).

South African courts are not bound by the terms or labels used by the parties used in establishing the service relationship. In other words, stipulating in the contract of service that a party to the agreement is an “independent contractor” when in reality the relationship is that of an employer-employee will not sway the courts to view the relationship as anything other than an employment relationship, as in the case where an employee works more than 24 hours in a month – even with a contract that states otherwise – will be seen as an appointed permanent employee.

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The importance of employment contracts

Employment Law

An issue popping up on the radar of labour disputes at the CCMA is a lack of employment contracts. There appears to be an odd belief among employers that if a contract is not in writing, it does not exist and therefor they can basically do what works for them without repercussions or recourse for employees.

This scenario turns into a nightmare landscape all too often for the erstwhile employer. According to the Basic Conditions of Employment Act (BCEA) it is required by law that every employer provides a contract of employment to the employee on no later than the first day of work.

The contract of employment is an important document. It defines the terms of service of the employment relationship and regulates the terms and conditions of employment. It sets out the entitlements and benefits of the employee in terms of labour legislation and company policy.

The employment contract also regulates the behaviour of employees at work since all company policies and procedures – including the crucial disciplinary code – form part of the contract. Without a contract in place, it can be an extremely difficult task to act against employees as the employee can, likely successfully, claim that he was never informed of the policy s/he transgressed and has the right to conclude that it does not exist.

There are various types of employment contract such as permanent, fixed term, probation and project employment. At this point it is important to note that the current trend of engaging “independent contractors” to performing continuous tasks as part of an organization is not covered in these types as the law will apply its own standards to determine the relationship between an employer and an employee irrespective of the wording of the contract.

A key difference between an independent contractor and an employee, in law, is that the object of a contract with an employee is for the rendering of personal service by the employee. A contract with an independent contractor is to produce a specified result and may be delivered through others (contracted to him/her.)

In terms of both the permanent and fixed term contract, both start with a written offer of employment, which the employee then accepts in writing. The contract is then entered. The only difference here is that a permanent contract has no end date, but a fixed term contract will stipulate a date ending the contract and the employment relationship.

The project employment contract may be closest to that of engaging the services of an independent contractor. Basically, a project contract of employment is in fact a fixed term (or temporary) contract of employment. Here, the difference is that rather than stipulating a specific starting and end date (unless the project runs according to time) the project contract of employment engages an employee to complete a specific project where the end date is unknown, but does stipulate that the contract will end when the project is complete.

A probationary contract is offered where an employer wishes to test whether an employee will be suitable to task within a certain time frame – usually three months. If an employee is unable to meet the requirements stipulated, the employment relationship is ended. However, employers must affect this termination in compliance with the Labour Relations Act (LRA), schedule 8 of the Code of Good Practice.

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