Due to the National State of Disaster and extra-ordinary circumstances, everyone has to play a part in fighting this Coronavirus (COVID-19). Everyone is impacted! Employers and employees need to consider the best manner in which they can contribute to the prevention of infection and the spread of the virus.
Significant information about the virus has been made available by Government and other institutions. The purpose of this article is not to repeat everything already known about the virus and precautionary measures that may be taken, but instead to answer a couple of questions pertaining to absence from work during the next couple of weeks, possibly months, and other possible options available to employers.
Our labour legislation does not provide for emergency sick or annual leave for instances such as the present. However, any absence from the workplace without permission must still be justified by the employee by means of a medical certificate in the event that the employee has been absent from work for more than two consecutive working days or absent from work on more than two occasions during an eight-week cycle.
However, employees should be encouraged to immediately disclose (without any delay) general symptoms of a cold or flu to the HR Department or their immediate manager. Such employees should be required to stay at home until such time they are fit to return to work. They will however still be required to justify their absence by means of a medical certificate issued by a registered medical practitioner. Should the employee be able to justify absence from work by means of such a certificate, the period of absence must be paid from the employee’s sick leave entitlement. Should the employee not have sufficient sick leave available, such absence will unfortunately be without any remuneration or benefits, unless annual leave is available for payment purposes or if otherwise decided by the employer
Working from home
Not all jobs can be performed from home. However, employers should permit employees whose jobs can be performed remotely and who are not required to come to work or the office, to work from home. It is advisable that employers identify these jobs and make arrangements for those employees to stay at and work from home. Such employees must be required to complete daily attendance registers and/or work log sheets and to submit these on a weekly basis to their employer.
It will be the employer’s responsibility to ensure that the employees are able to work from home, i.e. provide a laptop/desktop (if required), arrange and activate remote network access, telephone facilities, etc.
What happens if the employee is injured while working from home? If it is proved that the injury occurred while performing a job at home, then normal injury on duty provisions apply. The employee’s home has become the workplace and therefore should be treated like any injury on duty at the workplace. However, it is important to note that in the event of such injury, it will have to be proved that it occurred while the employee was executing duties at home. In the absence of such prove, it will not qualify as an injury on duty and consequently workman’s compensation will not be applicable.
Safe work environment
In terms of the Occupational Health and Safety Act, it is the responsibility of the employer to ensure that employees are safe at the workplace. A number of actions can be implemented:
- Measure employee temperatures/fever (electronic devices are available) before they access the workplace.
- Provide hand sanitisers at work stations and high touch point areas.
- Provide face masks.
- Provide surgical gloves, if necessary.
- Augment the number of cleaning staff to increase the frequency to wipe down high frequency touch points surfaces.
- Provide information about the virus in the required languages.
- Intensifying employee awareness of personal preventative measures to protect their health.
- Send special notices/communications regarding leave, sick leave, etc and how it will be handled.
Employees’ children – school closure
Schools are closing from Wednesday, 18 March 2020 until after Easter weekend, i.e. Tuesday, 14 April 2020, which may be subject to change. This will place an extra burden on those employees who have school going children. Again, no special leave is legally applicable, but employers should reasonably accommodate the absence of parents whose children must be looked after during this period, especially young children.
Where disciplinary action is interrupted as a result of the presence of the virus in a workplace or due to the absence of the employee or witnesses, employers must notify the employee in writing of its intent to continue with such disciplinary action when circumstances have normalised.
Alternatively, it is also possible these days to conduct disciplinary enquiries via tele-conference or Skype. Employers need to consider these other means of conducting enquiries, which will not unduly delay or postpone disciplinary enquiries.
Incapacity proceedings for employees that are infected by the virus is not recommended. The Coronavirus is a temporary medical condition with the employee most probably being able to return to the workplace later, fit for normal duty.
Where it is impossible to continue with normal business activities, employers will be required to temporarily put employees on short-time. However, due consideration must be given to relevant Bargaining Council Main Agreements where the business falls under the scope of such council. Such short-time is normally unpaid and as alternative to retrenchment.