By now, everyone knows what the Corona Virus is about, so the purpose of this article is not to talk about the medical symptoms thereof, but rather to look at the question of Employer liability and related workplace issues.
THE OCCUPATIONAL HEALTH AND SAFETY ACT (OHSA)
The Occupational Health and Safety Act 85 of 1993 as amended (OHSA) is an important piece of legislation for all businesses. Various provisions and regulations contained in this statute require the Employer to take pro-active steps to deal with the potential harm which may arise should there be a large-scale Corona outbreak in the work environment. “Harm” in this instance could include anything from an industrial accident – e.g. a physical injury sustained in a factory environment which uses heavy machinery, to an occupational disease – e.g. contracting lung cancer which is partly or wholly attributable to the emission of toxic chemicals.
Picking up a novel strain of the Corona Virus from a colleague could conceivably lead to Employer liability, if the Employer failed to take enough steps (on a pro-active basis) to deal with the foreseeable harm.
WHY IS THIS?
The answer can be found in Section 8 of the OHSA, which places an express obligation on every Employer to “…provide and maintain…a working environment that is safe and without risk to the health of its employees”, and further, to “make arrangements for ensuring…the safety and absence of risks to health in connection with the production…of articles…”
It is clear from the above that the Employer is duty-bound to deal with any situation which may impact negatively on the health and safety of its employees, which in the case of the Corona Virus may even include refusing an infected employee entry into the work premises, or alternatively removing such an employee from the workplace.
But it goes much further than this, as the Employer is required to take pro-active measures to prevent the potential harm from occurring in the first place.
WHAT PRACTICAL MEASURES CAN THE EMPLOYER IMPLEMENT?
This would need to be customised to suit your specific business, but the following general advice should be considered.
- Conduct a risk evaluation of your business vis-à-vis the Corona Virus, looking especially at factors such as your supply chain, your specific working conditions and the potentially vulnerable employees amongst your workforce, such as those who are pregnant, disabled, etc.
- Review, reconsider and update your workplace health and safety systems and policies – especially those relating to disease control.
- Develop appropriate business continuity plans in the event of a major outbreak of the virus amongst your workforce. This could include the option of working from home, where such an option is practical for your operation (see Table, below).
- Take steps to ensure that the workplace is clean and hygienic. Investigate all employee complaints.
- Create greater awareness of the Corona Virus amongst your employees with proper training and educational programmes, and by keeping your staff fully informed.
- Conduct a communication campaign about effective hygiene and healthy habits such as regular hand-washing. Make hand sanitizers available to customers and staff. Ensure that you have adequate facilities to enable everyone to practise these behaviours.
- Check your insurance arrangements.
- Discourage employees from travelling overseas on holiday, until the Corona Virus is contained. Postpone business travel, company conferences and the like, or where possible or consider alternatives, such as switching to video-conferencing.
- Insist that employees disclose if they have travelled overseas to high-risk areas.
- Where appropriate in large organisations, consider informing staff of exposure statistics, while maintaining the confidentiality of those employees actually infected.
HOW DO YOU TREAT TIME-OFF TAKEN BY EMPLOYEES?
The table below covers the protocol for most circumstances
| WHERE THE EMPLOYEE HAS A VALID SICK NOTE | WHERE THE EMPLOYER INSTITUTES A COMPULSORY QUARANTINE PERIOD | VOLUNTARY SELF-QUARANTINE INITIATED BY THE EMPLOYEE AS A PRECAUTIONARY MEASURE |
| · Record time-off against employee’s sick leave.
· If sick leave has been exhausted, the employee could claim from UIF. |
· Treat as paid special leave.
· Alternatively, allow employee to work from home (if practical to do so) and assist in setting up the infrastructure. |
· An employee may not simply refuse to come to work without good grounds.
· Treat as annual leave, OR allow employee to work from home, OR unpaid leave, OR (as a last resort) paid special leave. |
What about incapacity termination for prolonged absence from work, implementing “short-time”, changing shift patterns, embarking on a retrenchment exercise, temporarily or permanently closing your business or the sale or transfer of your business as a going concern?
These are specialised procedures which should preferably be dealt with on a case-by-case basis. Brookes Attorneys are actively advising clients about all the above processes. For more specific advice and assistance please contact Carlo Torino, our Employment Law specialist on 031 035 1055.
