COVID-19: What Employers Need To Know

As at 23 March 2020, South Africa has recorded over 400 cases of COVID-19. In a previous article we looked at the question of Employer liability pertaining to the spread of the Corona virus amongst fellow employees, and related workplace issues. (Should you require a copy of this article, please feel free to give me a call or drop me an email on carlo@brookes.co.za with “Corona – Health and Safety in the Workplace” in the subject line).

We looked at ten practical measures which an Employer could implement in an attempt to deal with the potential harm (and possible employer liability) which may arise, should there be a large-scale Corona outbreak in the work environment. This was premised primarily on the Employer’s obligations in terms of The Occupational Health and Safety Act 85 of 1993 as amended (OHSA), wherein the Employer is duty-bound to deal with any situation which may impact negatively on the health and safety of its employees.

We also included a matrix with the most likely forms of “absence from work” in respect of the current Corona virus pandemic, and how such absences ought to be treated by the Employer-party. However, on 23 March 2020, President Cyril Ramaphosa made a further announcement to the country (the announcement), in which a nation-wide 21-day “lock-down” (the lock-down), was imposed with effect from midnight on 26 March 2020. 

What this means is that individual citizens (who are not employed by essential services) will not be allowed to leave their homes except under strictly controlled circumstances – for example to seek medical care or to buy food, medicine and other supplies, and/or to collect a social grant. The lock-down will be enforced by the SAPS and the SANDF.

Some further salient features of the lock-down are as follows.

EXEMPTIONS 

1. Although a full list of “essential personnel” (and/or business categories which will be allowed to remain open) is still to be published, the broad categories of employees and business operations listed hereunder were referred to during the announcement itself.
2. Health workers – (both in the public and private sectors)
3. Emergency personnel
4. Security services personnel (encompassing SAPS, SANDF; Traffic officers)
5. Those involved in the production, transportation and supply of food
6. Banking services
7. Those involved in the provision of power, water, telecommunications and laboratory services
8. Those involved in the provision of medical and hygiene products

BUSINESS CLOSURES

According to the announcement, all shops and businesses will be closed, except for the following.

1. Pharmacies
2. Laboratories
3. Banks
4. Essential financial services
5. Supermarkets
6. Fuel stations
7. Health care providers
8. Any other companies involved in the production and distribution of food, basic goods and medical supplies.
9. Importantly, all firms that can continue their operations remotely (where their employees can “work from home”), are encouraged to do so.

MEASURES TO MITIGATE THE NEGATIVE ECONOMIC IMPACT OF THE LOCK-DOWN

Several interventions were mentioned by the President in respect of the “first phase” of the government’s response, including the examples below.

1. The establishment of a “Solidarity Fund” (the Fund), which interested corporate citizens may contribute to. The Rupert and Oppenheimer families have already made a sizeable financial commitment thereto of R1 billion each, which is aimed at assisting small businesses and their employees. Johann Rupert has reportedly confirmed that such contribution should be made available to all small businesses and their employees and is not restricted to “black owned” enterprises.
2. Regulations to prohibit profiteering (or unjustified price hikes) and to ensure that shops maintain adequate stocks of basic goods to try and prevent panic buying and/or stockpiling.
3. A special dispensation for companies in financial distress because of the Corona pandemic, including a “Temporary Employee Relief Scheme”, the details of which still need to be unpacked.
4. Payment through The Compensation for Occupational Injuries and Diseases Act (COIDA) if an employee falls ill through workplace exposure.
5. Use of Unemployment Insurance Fund (UIF) reserve funds to support employees in small and medium enterprises (SMEs), where necessary. Details of this intervention are still to be communicated.
6. Employment Tax Incentives (tax subsidies of up to R500 per employee) for private sector employees earning less than R6,500 per month. 
7. Deferred payment of pay-as-you-earn (PAYE) and provisional income tax liabilities for tax-compliant companies which have a turnover of less than R50 million per annum.
8. Financial assistance to vulnerable firms in certain identified sectors (e.g. in the tourism and hospitality industries) with various funding models.

In many ways, the above announcement changes the game plan as the state has now used The Disaster Management Act (and its associated Regulations), to statutorily enforce a ban from attending work across the country, unless otherwise prescribed. A lot of the details still need to be unpacked, and the country is awaiting further briefings, including from the so-called “economics cluster” in this regard. 

Where it is business as usual and workplace attendance is still required, all the precautions and practical steps mentioned in our previous article remain intact and valid. These employers will still have to comply with the OHSA and implement effective measures to contain the spread of COVID-19. In these dynamic times, updating your Health and Safety policies and procedures and communicating such updates to your employees is critical. Similarly, introducing new rules for remote access/working from home may be equally important.

HOW CAN WE HELP

We at Brookes Attorneys are monitoring the situation for your benefit and will be available throughout the lock-down period, as we are working from home. While working remotely, we can conduct business with continued efficiency and uninterrupted service to our clients telephonically, by email and if necessary, by videoconferencing. We can assist by conducting an employment law audit and impact assessment and by updating your contracts of employment and policies and procedures so that everything is in place by the time the lock-down is over.

Aside from the above, you may discover that despite the proposed state interventions, you still need to consider issues such as:

1. RETRENCHMENTS AND OTHER TERMINATIONS 
2. IMPLEMENTING “SHORT-TIME”
3. CHANGING SHIFT PATTERNS
4. TEMPORARILY OR PERMANENTLY CLOSING YOUR BUSINESS OR 
5. 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 / 082 773 8130