CORONAVIRUS – A PRACTICAL GUIDE FOR EMPLOYERS
Introduction

  1. On 11 March 2020 the World Health Organisation (“the WHO”) officially declared that the spread
    of Coronavirus had reached the level of a pandemic. The virus is crossing international boundaries
    and affecting a large number of people worldwide. Coronavirus is a very serious illness and is
    potentially lethal. In respect of the workplace immediate steps must be taken in order to attempt
    to diminish its impact.
  2. The WHO statement was followed by the declaration of a State of Disaster in South Africa in a
    widely viewed television address by President Ramaphosa on Sunday, 15 March 2020. Drastic
    measures were announced including the closure of schools, the banning of public events
    exceeding one hundred people, the prohibiting of international travellers from certain countries
    from entering South Africa and the closing of multiple ports of entry. NEDLAC is also holding
    emergency meetings to discuss the measures that employers should be taking and ways to
    mitigate the damage that could be suffered.
  3. It is apparent from the WHO’s declaration and the steps taken both here and abroad that a
    multifaceted and unified approach is necessary in order to attempt to limit the spread of the virus
    (total containment now being impossible). This requires cooperation and coordination between
    the State, the Department of Health, the private sector, the medical fraternity, businesses,
    schools, individuals and so on. In relation to employers specifically, we have been inundated with
    requests from our clients for advice on the legal obligations and implications of the spread of
    Coronavirus.
  4. From a solely legal perspective, employers are subject to both a common law and a statutory
    duty in terms of the Occupational Health and Safety Act to provide a safe and healthy working
    environment for their employees. This includes taking appropriate steps to prevent the spread
    of Coronavirus and the involvement of medical practitioners, welfare departments, operational
    health and safety representatives and committees in that regard.
    Symptoms and Transmission
  5. In order to develop a plan to mitigate the effects of Coronavirus, it is necessary to begin by
    understanding its symptoms and how it spreads.
  6. The symptoms of Coronavirus typically include a fever, a cough (in particular a dry cough) and/or
    shortness of breath, although it is possible that symptoms can present like a normal cold or flu.
    These symptoms can escalate to pneumonia and other serious medical conditions and ultimately
    death (it has been reported that up to 3% of persons who are infected may die). Elderly persons
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    and persons with existing medical conditions, especially respiratory conditions, are particularly at
    risk.
  7. The symptoms appear between two and fourteen days after exposure and, in certain cases,
    asymptomatic transmission is possible (i.e. a person may be contagious before he/she shows
    any symptoms of the virus).
  8. The virus spreads through close contact between persons. This may occur as a result of
    respiratory droplets produced when sneezing or coughing. It is also spread through the
    contamination of surface areas. It has been reported that such contamination may last for as
    long as three days.
  9. The best means to limit the spread of the virus is to limit interaction between people.
    Internationally, this has manifested itself in citywide lockdowns and widespread travel
    restrictions. Some of these measures have also been adopted as part of the State of Disaster in
    South Africa.
    Employers & Employees – Proactive Steps To Be Taken
  10. A number of proactive steps can be taken both by employers and employees in order to mitigate
    the risk of Coronavirus. These including the following:-
    • employers should issue a communique to all staff advising them of the symptoms and
    encouraging them to self-monitor for infection. This should include a procedure for
    employees to confidentially report any suspected infection / risk of infection to the
    employer (i.e. where a family member has contracted the virus);
    • a number of employers are implementing policies which permit so-called self-isolation /
    quarantine in the event that an employee suspects that he/she may have contracted the
    virus. This option may of course not be practical for critical employees and employers may
    wish to retain the services of those employees until they exhibit signs of illness;
    • where possible, employees should be permitted to work from home or alternatively limit
    the amount of physical interaction that they have with other employees and clients. Email,
    phone and Skype/Video communications should be encouraged and unnecessary
    gatherings/meetings avoided. International travel should also be avoided as should
    unnecessary air travel between different offices (i.e. in larger companies);
    • In circumstances where working from home becomes necessary, a Policy and Procedure
    should be implemented by employers in order to regulate the working from home
    arrangement. To that end employees should have a clear and detailed understanding of
    both the hours to be worked and the level of performance required for work performed at
    home. Critically employees must understand their responsibility to report regularly to their
    Line Managers. The costs involved in working from home, if any, should be limited and
    comprehensively dealt with in the Policy. It is to be regretted that this may inevitably lead
    to abuse by certain employees and accordingly employers would be required to closely
    monitor such an arrangement;
    • employees should be advised of appropriate hygiene practices including regularly washing
    their hands, avoiding face-touching and cleaning commonly used surfaces (including
    eating surfaces). Employers should facilitate this by providing both soap and alcohol based
    hand rubs (containing at least 60% alcohol). Posters containing such advice should also
    be posted around the workplace and employers should adopt robust cleaning procedures
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    in relation to commonly used surfaces (including bathrooms and kitchens). Employees who
    fail to abide by these workplace rules should be subject to disciplinary action;
    • employees should also be encouraged to exercise good respiratory etiquette including
    practising the ‘vampire cough’ (i.e. coughing into the elbow instead of the hand) and/or
    using tissues which are discarded appropriately;
    • employees should avoid sharing phones, desks, computers and other tools of the trade.
    Where shared equipment is used such as photocopiers, handwashing should be
    encouraged immediately thereafter;
    • employers should revisit the planning of their offices in order to ensure appropriate
    distance is kept between employees (a distance of two meters is recommended). This will
    not always be possible especially in factory settings;
    • where an employee is displaying symptoms of the Coronavirus, employers must require
    that employee not to attend at the workplace and to immediately seek medical advice.
    Employees should avoid emergency rooms / hospitals and instead rely on their general
    practitioner as a first port of call. Employees should also be encouraged to telephonically
    contact their GP’s as many are conducting skype / video consultations where symptoms
    are not severe in order to avoid further spreading the virus. Employees should also obtain
    and submit sick notes electronically where possible;
    • emergency occupational health and safety committee meetings should be convened to
    enable action plans to be put in place. These plans may vary according to types of
    employees where different contingencies may be necessary.
    Sick Leave & Other Options To Be Considered
  11. On the issue of sick leave there has been a great deal of uncertainty and debate concerning its
    applicability. This includes uncertainty as to whether employees who voluntarily self-isolate are
    considered ‘sick’ for the purposes of the BCEA and consequently whether existing paid sick leave
    entitlements cover such voluntary self-isolation.
  12. At the outset a distinction must be drawn between employees who exhibit symptoms of illness
    and those who self-isolate as an precautionary measure. In circumstances where employees
    exhibit any signs of illness, the provisions of the BCEA dealing with sick leave find application
    and the employees should be placed on paid sick leave. Where that paid sick leave is exhausted,
    but the employee remains sick, the employee will then be subject to unpaid leave.
  13. Employers should also be mindful that the Unemployment Insurance Fund permits employees to
    claim from the fund in circumstances where they are sick for more than seven days and have
    exhausted their paid sick leave entitlements. Employers should, where possible, assist employees
    with the UIF application, although it is to be anticipated that payment would be delayed.
  14. Conversely in circumstances where employees voluntary self-isolate, in the absence of any
    symptoms and solely as a precautionary measure, employers should opt to place those
    employees on special leave for that purpose for which a time period could be set. Employees
    who choose to self-isolate could also be given the option of taking annual leave.
  15. This is so as the placement of employees on sick leave in circumstances where they are in fact
    neither ill nor exhibiting symptoms may create unsustainable precedents susceptible to future
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    abuse. Some employees may be tempted to take advantage of the pandemic and voluntary selfisolate
    without cause.
  16. Although employers are encouraged to pay employees during special leave to incentivise
    voluntary self-isolation in an attempt to curb the pandemic and contain the spreading of
    Coronavirus, payment in terms of the law is not compulsory. We strongly recommend that these
    aspect be addressed in an emergency Pandemic policy.
  17. We also expect that one of the items that NEDCLAC will discuss will be the utilization of UIF funds
    to ensure payment of employees who self-isolate and who are unable to receive paid sick leave
    for that period.
  18. In respect of employees who refuse to voluntarily self-isolate and are forced to remain at home
    because they are displaying symptoms, the position is more complicated. Section 7 of the
    Employment Equity Act states that medical testing may be justified inter alia in light of medical
    facts and employment conditions. In our view, given the general health and safety obligations
    referred to above, employers are legally entitled to insist on medical testing before allowing an
    employee who is displaying symptoms to attend work.
  19. Where an employee unreasonably refuses medical testing notwithstanding that he/she is
    displaying symptoms but continues to tender his/her service, that employee should be placed on
    unpaid special leave pending a medical assessment.
  20. It is possible that the situation may worsen in the coming weeks and a State of Emergency may
    be declared. This could have drastic implications, including the closing of businesses, shops and
    other entities. In those circumstances, employers should consider implementing measures such
    as short-time, lay-offs or taking of annual or unpaid leave as alternatives to retrenchment. Where
    financially possible employers should attempt to avoid retrenching employees. Amongst other
    considerations this could lead to loss of medical aid membership. This is an issue where all should
    attempt to make sacrifices for our common humanity. In specific circumstances it may be
    impossible not to implement a restructuring exercise.
  21. Where conditions of employment do not deal with issues such as short-time and lay-offs the
    implementation of those measures must be discussed with employees and consensus must
    sought.
  22. Such arrangements are regulated by some bargaining council agreements and can be readily
    implemented in certain circumstances. For other employers, such arrangements will need to be
    negotiated with Unions or employees and where no agreement can be reached, may need to be
    implemented through an appropriate process.
    Conclusion
  23. Employers must develop contingency plans to deal with these and other issues which may be
    specific to their businesses. Employers should be adopting a flexible and practical approach to
    dealing with the Coronavirus.
  24. For smaller employers, a plan of action should be put into place and communicated to employees.
    Employees should be informed of the proactive steps that they can take to avoid infection, what
    to do if they suspect that they have the virus and the requirements for paid sick leave. This may
    include permitting voluntary self-isolation and compulsory isolation for employees displaying
    symptoms.
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  25. For larger employers, many are electing to put in place emergency Coronavirus policies dealing
    with these issues including different contingency plans for different staff. This should of course
    be done in conjunction with occupational health and safety committees and take into account
    employee input.
  26. Please feel free to contact us should you require any assistance – we are available to assist in
    the preparation of both Coronavirus and Homeworkers policies on an emergency basis.
  27. As we are dealing with a pandemic please distribute these guidelines to friends and colleagues.
    Disclaimer
    The contents and suggestions contained in this article are for information purposes only and are not
    for the purpose of providing specific comprehensive legal advice. You should contact us to obtain
    advice with respect to any particular issue or problem mentioned herein.
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    Nobanzi Madikizela-Nyati
    Partner & Head: Public Law, Risk,
    Governance and Compliance
    nnyati@chmlegal.co.za
    +27 11 048 3000 | +73 650 6720
    Rod Harper
    Partner & Head: Employment Law,
    Benefits,
    Industrial Relations & Discrimination
    rharper@chmlegal.co.za
    +27 11 048 3000 | +27 83 253 1733
    Neil Coetzer
    Partner: Employment Law, Benefits,
    Industrial Relations & Discrimination
    ncoetzer@chmlegal.co.za
    +27 11 048 3000 | +72 280 1699
    Tanya Mulligan
    Partner: Employment Law, Benefits,
    Industrial Relations & Discrimination
    tmulligan@chmlegal.co.za
    +27 11 048 3000 | +76 981 8859
    Gael Barrable
    Partner: Employment Law, Benefits,
    Industrial Relations & Discrimination
    gbarrable@chmlegal.co.za
    +27 11 048 3000 | +83 379 2406
    Mbulelo Ndlovu
    Associate: Public Law, Risk,
    Governance and Compliance
    mndlovu@chmlegal.co.za
    +27 11 048 3000 | +72 343 5267
    7
    Jessica Fox
    Associate: Employment Law, Benefits,
    Industrial Relations & Discrimination
    jfox@chmlegal.co.za
    +27 11 048 3000 | +72 683 2162
    Sino Skondo
    Associate: Employment Law, Benefits,
    Industrial Relations & Discrimination
    sskondo@chmlegal.co.za
    +27 11 048 3000 | +83 264 6696
    Courtney Wingfield
    Associate: Employment Law, Benefits,
    Industrial Relations & Discrimination
    cwingfield@chmlegal.co.za
    +27 11 048 3000 | +76 787 9177
    Kenosi Mokolobate
    Candidate Attorney: Public Law, Risk,
    Governance and Compliance
    kmokolobate@chmlegal.co.za
    +27 11 048 3000 | +82 927 7956
    Mzamo Danana
    Candidate Attorney: Employment Law,
    Benefits,
    Industrial Relations & Discrimination
    mdanana@chmlegal.co.za
    +27 11 048 3000 | +78 193 2532
    James Horn
    Consultant: Employment Law, Benefits,
    Industrial Relations & Discrimination
    jhorn@chmlegal.co.za
    +27 11 048 3000 | +72 960 8314