Lockdown – working remotely, COVID-19 infection and compensation

May 6, 2020

Due to the lockdown some employees have not been able to work, while others are on the frontline of the fight against the virus or had to work remotely from home.

What does working remotely from home mean in terms of occupational health and safety? Is the home environment considered a work environment if someone contracts the virus?

The Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 (COIDA) provides for compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment, or for death resulting from such injuries or diseases.

A compensation claim by an employee who contracts the virus while working remotely would be difficult to make as the onus will be on the employee to connect the contracting of the virus to the workplace.

Low-risk exposure

When an employee is asked to work at home, in the scope of his/her duties, it may be difficult to prove that the employee fell ill by being exposed to Covid-19 while at the workplace (the home environment). It is unlikely that a claim will be successful under these circumstances. In an occupational setting working at home would be considered a low-risk exposure environment.

A medium-risk exposure environment would include the high-volume retail trade where persons interact with customers who may or may not expose them to the virus, while a high-risk exposure includes a medical transport worker or someone working in healthcare delivery. Frontline workers are those in direct contact with the virus, such as medical doctors and ICU nurses.

What if the risk liability of Covid-19 is not occupationally acquired and does not meet the test?

The employer must be careful because there is a possibility to claim damages as the employer is then not protected from the preclusion against civil liability in terms of Section 35 of the COIDA.

Working from home

Working from home proves to be beneficial for employers as it improves productivity, lower costs and assists in curbing the spread of the virus. However, it presents a few challenges to employers.

There are practical issues that employers must give careful consideration due to the lack of structure. For many employees, this is a significant challenge, it can be quite debilitating and de-motivating. Also, communication is significant as some employees need support and feedback from their employer on a regular basis, and finding the balance with not micro-managing employees and placing trust in employees to perform their jobs.

While working remotely might lead to employers needing to restructure their workforce, this needs to be done within the confines of the law.

The reality is that employers may find that they may not need as many people in the corporate environment, so therefore they need to consider retrenching. Employers still have to comply with regulations and the cost implications they want, wherever possible, to avoid such costs.

The country has shifted to level 4 of the lockdown from 1 May 2020, which is part of a risk-adjusted strategy of the phased re-opening of the economy by allowing some activity to resume with extreme caution to limit community transmission.

The public, however, is still encouraged to stay at home, other than for essential movement and, where possible, to continue working remotely.

Author:

Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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