By Seshni Govender – Staff attorney, Durban
As the COVID-19 outbreak spreads through society, the rules and norms in the workplace are changing. With South Africa in a 21-day lockdown for the first time in its history, many people are left with unanswered questions. Employers and employees are concerned about the impact this will have on their employment. Many employers were forced to shut down businesses and employees are forced to stay at home as a result.
During the period of the 21-day lockdown employees can fall into the following groups:
– Essential services employees;
– Employees who can work from home;
– Employees who cannot work from home or go in to work.
Essential services employees have been defined in terms of the Disaster Management Act, 57 of 2002: Amended Regulations, and not the Labour Relations Act, 66 of 1995. This group of employees is obligated to go to work despite the lockdown regulations that have been imposed by the President. These employees will be paid their salaries and will have to carry out their daily tasks as stipulated in their employment contracts. Should an employee refuse to work, or not go to work, then the principle of “no work no pay” will come into effect and the employee may face a disciplinary hearing.
In terms of the Occupational Health and Safety Act, 85 of 1993 employers must ensure that the working environment is safe for the employee. In this instance an employer must have gloves, masks, hand sanitisers and other protective gear available to employees who are required to work during this period. Employers must also ensure that social distancing is practised during working hours. Should employers not adhere to the aforementioned, then employees may refuse to work due to unsafe working conditions.
Many employees fall under the second category, which are employees who can work from home. These employees are entitled to be paid as long as they can carry out their duties. The employer may put in place specific deliverables to ensure that the employee is working at home i.e. timesheets, weekly calls, emails, progress reports, etc. Should an employee fail to carry out the daily tasks set by the employer while working from home, the employer can institute disciplinary action against the employee as set out in the employee’s employment contract.
However, the question that arises when it comes to the third category of employees, is what will happen to them since they are unable to work? When we look at the business imperatives of a company, some employees’ jobs are linked to the business premises, such as cleaners. These employees are at risk of being arrested should they go to work and break the lockdown rules and regulations. Employers are therefore left with the daunting task of deciding what they should do with their employees during this crisis.
The options that are open to them are the following:
– Pay the employees in full;
– Pay their employees half of their salary;
– Force their employees to take annual leave; or
– Offer their employees a loan, which can be recovered at a later stage.
It has come to light that many employers are favouring the third option, which is to force employees to take annual leave. This has not been taken well by Government. Labour Minister T. W. Nxesi reiterated in a media briefing in Pretoria that the Government has made funds available to businesses to mitigate some of the losses experienced due to the shutdown. Employees will be entitled to benefits under the Unemployment Insurance Fund and the COVID-19 Benefit Fund that the Unemployment Insurance Fund has established as an instrument to mitigate the effects of the layoff of employees during the lockdown. Therefore, the Labour Minister has stated clearly that no employer should force his or her employees to take annual leave or leave without pay during the period of the lockdown.
This pandemic has created many hurdles and it will be interesting to observe how employers react to the challenges they are presented with and the impact this will have on the workplace. COVID-19 will have a lasting impact on the work environment, as it has forced us to explore alternative ways of working that were previously thought to be closed to us. One thing is for certain: at the end of this we can expect to see a very changed South African employment landscape.