Legal Articles

It has taken a lot of regulatory intervention to help contain the effects of the ravaging COVID-19 pandemic, especially in the labour market. This is because at no point in recent times has there been a single phenomenon that has simultaneously crippled economic activity throughout the world. Additionally, what has exacerbated the situation is the virus has affected anyone and everyone; even those who have not been infected have been affected by its negative effects.

Working from Home during COVID-19

The government of South Africa upon the advice of health experts, has urged that work operations that can be done remotely be encouraged to do so. The industries that may not work remotely however, must observe strict protocols to curb the chances of infection by observing such measures as using PPE, social distancing and sanitizing their workforce, all this while the vaccination drive is in full swing.

The challenge has been what employers could make of the employees who get infected by the virus and fall sick. Under which provisions and circumstances may they be covered by labour laws where they are not able to work, fall sick, or not supposed to be available so as not to expose others to infections. Due to the nature of the virus, infected people are required to isolate themselves even though they present no symptoms. Similarly those who have been in contact with confirmed cases should also isolate themselves for a certain number of days so that the symptoms may show or the infection subside within the given time.

Sick Leave and COVID-19

Where the employee actually presents symptoms, they must be placed on paid sick leave as per Section 22 of the Basic Conditions of Employment Act (BCEA). This is the directive of the Consolidated COVID-19 Directive on Health and Safety of 2020. The employee must also not be permitted to access the workplace and in the event that they already were in the workplace, they must be isolated and the place disinfected. The other employees who were in contact must also be referred for screening and assessment. Only upon the completion of the isolation period may the employee be allowed to return to work and strict observance of health protocols must be enforced.

As per Section 23 of the BCEA, proof of such illness must be produced by the employee so that the employer may file in their records. This is so as to prevent abuse of the situation by other employees who may very well not be sick or having symptoms. A valid medical certificate needs to be provided so that records are updated accordingly.

Guidelines for Symptom Monitoring and Management of Workers for SARS-Cov-2 Infection

In the event where an employee has been exposed to a Covid-19 positive person in the workplace, it must be ascertained whether the exposure is high risk or not. The Guidelines for Symptom Monitoring and Management of Workers for SARS-Cov-2 Infection differentiate between high risk and low risk exposure. High risk is whereby the exposed employee was within 1 metre, for at least 15 minutes and without wearing PPE, to a positive person. In this case the employee must be encouraged to work remotely and go into isolation for the prescribed minimum number of days and if no symptoms present themselves, they may return to work while monitoring themselves. Further, if the employee may not work remotely or if in fact it is found that they contracted the infection, they must be placed on sick leave and may be dealt with in terms of COIDA.

The virus is ravaging everywhere even outside the workplace, and therefore employees may indeed contract the virus outside the workplace. In this case the employer must insist on a medical certificate or an assessment of high or low risk to decide on the merits of paid sick leave.  

Van Deventers and Van Deventers Inc. – Labour Law Attorneys South Africa

We welcome employers and employees to come and consult with our able Labour law attorneys for further information. Despite being in a pandemic the labour laws are still effective and need to be observed by all parties in the employment relationship. Avoid dire consequences and consult with attorneys who will provide the guidance that you need.

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