Many employees across South Africa are gearing up to return to their workplace when Level 3 of the national lockdown kicks in on 1 June 2020. While some workers have been able to carry out their duties from a home office, others were faced with an uncertain future and no, or significantly reduced, income. So, of course, there are many positives to more businesses opening and the economy getting back on its feet, but returning to work for the lifeblood of the economy – the employees- can cause stress and anxiety. In addition to dealing with the possibility of contracting a highly infectious virus, workers are returning to various employment unknowns, like possible pay cuts, new hygiene protocols, adjustments to leave benefits and more. This is why we’ve decided to consult one of our labour law experts, Bayanda Mdingi, to answer the frequently asked questions about the legal rights of employees returning to work during lockdown level 3.
10 Crucial Question From Employees Returning to Work
Question 1: Which employees can return to work in this next stage of the national lockdown?
LAW FOR ALL: Anyone who works in the manufacturing, mining, construction, financial services, professional and business services, information technology, communications, government services and media services will be permitted to return to work. All retail, wholesale and e-commerce shops will still remain fully operational.
Question 2: How are businesses preparing for reopening and ensuring our safety as employees?
LAW FOR ALL: This is a very important question. New regulations, which came into effect on 29 April 2020, state medium to large businesses must have a “COVID-ready” Workplace Plan and a designated COVID-19 Compliance Officer in place before opening their doors again. The goal? To keep employees as safe as possible and mitigate the spread of the virus in the workplace.
Here’s an overview of what the plan must include:
- the date the business will open and its operating hours.
- a timetable setting out how employees will return in phases (to enable appropriate measures to be taken to avoid and reduce the spread of the virus in the workplace).
- a list of staff who can work from home, who are over 60 years old or older and who are potentially “high risk”.
- sanitary and social distancing measures and facilities, at the:
- entrance and exit of the workplace;
- screening facilities and systems;
- an attendance-record system and infrastructure;
- the work-area of employees;
- designated area(s) where the public is served;
- canteen and bathroom facilities;
- testing facilities (for businesses with more than 500 employees
- rotational arrangements for staff (for businesses where fewer than 100% of employees are permitted to work).
- arrangements for customers, clients or members of the public, including sanitation and social distancing measures
- the contact details of the COVID-19 Compliance Officer’’
Question 3: There is a possibility that I am a “high-risk” employee – do I still have to go into work?
LAW FOR ALL: The health and safety of employees should always be a priority for employers. This means that business owners are strongly encouraged to let employees with co-morbidities (anyone with more than one disease or condition present at the same time) to work from home. “It’s advisable for employers to establish clear remote-work policies. The managers must have regular check-ins via phone calls and video conferences to make sure the work-from-home staff are set up and able to perform their daily duties,” adds Mdingi. According to the Centers for Disease Control and Prevention, anyone with the following conditions is considered “high risk”:
- moderate to severe asthma;
- chronic lung disease;
- serious heart conditions;
- immunocompromised people;
- severe obesity;
- chronic kidney disease undergoing dialysis and liver disease.
Question 4: I am anxious about returning to work for two reasons: I am afraid of contracting COVID-19, and it might mean having to leave my children at home alone. Can I stay at home?
LAW FOR ALL: The law is very clear about employers implementing measures to make the working environment as safe as possible and to respect the legal rights of employees returning to work under lockdown level 3. Simply put, it must not pose a threat of any kind to a worker. This means employers must provide information, instructions, training and supervision that may be necessary to ensure the health and safety of employees at work. If this is the case, then you as an employee don’t have the legal right to stay at home based on your fear alone. Similarly, not having anyone to look after your children while you’re at work isn’t- from a legal perspective- grounds for staying at home.
That said, it’s still worth approaching your boss and stating your case. They might be open to the idea of you working from home with basic terms and conditions in place, of course. Communication is always key!
Question 5: What happens if one of my colleagues tests positive for COVID-19?
LAW FOR ALL: The moment an employee starts to show any symptoms associated with COVID-19, the employer must take action and help facilitate the employee leaving the working environment and seeing a doctor. Employees are also required to report to their employer if they feel as though they are exhibiting any of the symptoms. What’s more, as Mdingi points out, “The employee must take sick leave, and the rules for sick leave as per the Basic Conditions of Employment Act 75 of 1997 still applies”. If the employee tests positive for the virus, the employer will then require the employee to self-quarantine (they also have to inform the Department of Health and the Department of Employment and Labour). It’s important to note that there’s no obligation for the employer to close business. Still, the people who were in direct contact with the employee are encouraged to get tested and remain in isolation. However, if it’s found that the virus has spread quite widely, the business will likely have to close.
Question 6: Is my employer legally allowed to conduct COVID-19 screening tests at work?
LAW FOR ALL: Yes, they are; in fact, it’s a legal requirement for them to screen any employee who is reporting for work. “Employers must comply with any guidelines issued by the National Department of Health in consultation with the Department of Employment and Labour in respect of symptom screening,” clarifies Mdingi.
Question 7: There is talk of possible pay cuts – can my employer reduce my salary without my knowledge?
LAW FOR ALL: The financial impact of the COVID-19 outbreak has been substantial, with many businesses closing or struggling to stay afloat. Many employers are considering company-wide pay cuts to help keep their doors open and guarantee some kind of income for employees. However, employers are legally obligated to consult with employees about possible pay cuts, give reasons for it and obtain consent (preferably in writing). Should an employee reject the pay cut offer, they will likely face retrenchment.
Question 8: What happens if I face retrenchment?
LAW FOR ALL: South African law, specifically section 189 of the Labour Relations Act, states that employers cannot retrench employees without following due process. But this isn’t just as simple as giving an employee notice; there is a fair and legal process that must be adhered to. Learn more on The Retrenchment Process and Your Legal Rights.
Question 9: Will I lose my annual leave days because of the lockdown?
LAW FOR ALL: Any employee could continue to work at home during the lockdown would’ve continued to accrue their leave days, and are well within their rights to take their annual leave after lockdown.
Question 10: If I have lost my job, is there anything my employer can do to assist?
LAW FOR ALL: In a fragile and uncertain economy, it’s understandable to be worrying about income after losing a job. Thankfully, it’s not a dead-end, as you can apply to claim from the Unemployment Insurance Fund (UIF) right after you have been retrenched. And, yes, employers can undoubtedly help with claiming from UIF or the Temporary Employer/Employee Relief Scheme (TERS). LAW FOR ALL has created a comprehensive guide to claiming UIF and TERS Benefits.