South African employees will return to work in January at the height of a second coronavirus wave and alongside the reintroduction of new restrictions.
On 28 December 2020, President Cyril Ramaphosa announced that South Africa would move to an adjusted level 3 with immediate effect.
The adjusted level 3 regulations were gazetted on 29 December 2020 and contain further restrictions and stricter penalties for non-compliance with a view to curbing the spread of the virus while retaining a functioning economy insofar as possible.
Below, law firm Cliffe Dekker Hofmeyr outlined some of the key considerations for employees before returning to work.
Returning from holiday and working from home
Where an employee is able to work from home while quarantining, the employee may do so and will therefore be entitled to their full salary. In cases where an employee is unable to work from home, the employee may make use of their annual leave for the quarantine period.
Where an employee has exhausted their annual leave, the principle of no work no pay will apply and the employee will be placed on unpaid leave.
Employers should alert employees to the fact they will be required to self-quarantine upon return from a hotspot area and that they will need to make use of annual leave or unpaid leave for this period where they are unable to work from home.
Under the exceptional circumstances of Covid-19, requiring an employee who has returned from a hotspot area to self-quarantine, it can be argued that this does not amount to unfair discrimination
“Unless the employer can show that the conduct of the employee has damaged the employment relationship in some way, the employer is not entitled to discipline the employee for their conduct outside of the workplace,” Cliffe Dekker Homeyr said.
“A balance must be struck between an employer maintaining a safe working environment post the holiday season and an invasion of an employee’s privacy. Employers can only encourage employees to adhere to government protocols outside of the workplace.”
Obligations at the workplace
In terms of the adjust level 3 regulations, an employer has the following obligations and responsibilities:
- To adhere to all sector-specific or other health and safety protocols issued to date;
- To appoint a compliance officer to enforce compliance with the adjusted level 3 regulations and all other health and safety protocols issued to date;
- Prohibit employees from entering the workplace or performing their duties unless an employee is wearing a face mask;
- Determine the floor plan area of the workplace and the number of persons who may enter the workplace based on the floor plan area, while still maintaining a physical distance of 1.5 metres;
- Ensure all persons queuing either inside or outside their premises maintain a physical distance of 1.5 metres;
- Take measures to enforce physical distancing of 1.5 metres in its workplace, including implementing measures such as remote work, restrictions on face-to-face meetings and taking special measures in relation to employees who are considered vulnerable due to their age or co-morbidities;
- Provide hand sanitisers outside its premises.
Gatherings and curfews
Workplace gatherings are permitted provided persons maintain a physical distance of 1.5 metres and adhere to all health and safety protocols including sanitation and the wearing of face masks.
All business premises are limited to 50% capacity of its floor space which includes both customers and employees, subject to strict health protocols and physical distancing restrictions.
The following businesses must close to the public by 20h00:
- Museums and galleries;
Employers who commit the following offences will be liable to a fine or imprisonment not exceeding six months, or to both such fine and imprisonment:
- Exceeding the customer and/or employee allowance based on their floor plan determination;
- The sale, dispensing and distribution of alcohol;
- Where applicable, failure to adhere to the curfew of 20h00; and
- Adherence to restrictions in relation to limitations pertaining to gatherings.
Can an employer institute a mandatory vaccination policy once a vaccine becomes available?
The gist behind mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe working environment, Cliffe Dekker Hofmeyr said.
When considering whether to implement a mandatory vaccination policy employers must have regard to their individual workplaces and access whether such a policy is in fact necessary taking into account the following factors:
- The viability of continued remote work;
- The number of vulnerable employees in the workplace;
- The effectiveness of additional PPE where necessary;
- Temporary alternative placements;
- The employees' exposure to the public
- The number of employees with religious and/or medical grounds for objection.
“The requirement for such a policy should be determined on a case-by-case basis and the objections of employees or potential employees must also be duly considered with regard to the requirement to balance various rights.
“Employers must ensure that their records of infected employees are kept updated as this is a factor to also be taken into account,” Cliffe Dekker Hofmeyr said.