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.