What do I need to do, to operate as an ‘’essential service”?
If your business is on the official list of essential services as gazetted on 25 March 2020 (and any amendments thereto), then it may continue operating during the lockdown, subject to certain conditions. In addition, a certificate for your business is also obtainable from CIPC in this regard. Self-identification as an essential business (or part thereof) is a reflection of the dynamic nature of the lockdown regulations. The government has basically acknowledged the need for flexibility in this regard.
Will my staff need permits?
Yes, as an essential service, you will need to provide some form of official identification on a letterhead for each employee that needs to report for duty at the workplace, in case they are stopped at a road block or check point. This document may also be supported by the CIPC certificate.
Do I have to arrange transport for my employees during the lockdown?
While this is not ordinarily a legal requirement, many businesses are assisting their staff with transport to and from the workplace, for safety considerations and also due to the limited forms of public transport during the lockdown. The Disaster Management Act Regulation Amendments (issued on 25 March 2020) also state that “where a person rendering Essential Services is unable to get to work…the Employer must make the necessary transport arrangements…”.
What measures does a business need to take at the workplace itself?
In terms of The Occupational Health and Safety Act, the Employer would need to show that all reasonable precautions were taken at the workplace to protect its employees from the virus. This obligation remains in place if you are an essential service. Where practicable, social distancing needs to be enforced. Where employees work in close proximity, the Employer would need to determine whether it really needs the entire workforce to be on duty or whether some sort of rotational roster can be arranged.
Are masks needed?
There is a debate as to the efficacy of face masks, which itself turns on the nature of the work environment. Your staff are being placed at risk if they’re working in a confined space. Treat them right and they will appreciate it. The challenge to your business need not immediately be a “legal” one. It could come in the form of industrial action/refusal to work (which is partially dependent on whether your employees are unionised and how militant your union is). As a hypothetical scenario, an employee could contract the virus elsewhere, the other workers then find out, and suddenly everyone refuses to work because they have been in contact with their infected colleague.
To avoid such repercussions (which could be of the legal and/or industrial action variety) it is therefore better to err on the side of caution with your health and safety protocols and standards. From a legal perspective, it is also better to take whatever further precautions are available to you pro-actively, than to become embroiled in a “test case” which has the potential to turn into a public relations disaster for your firm. Face-mask usage (even non-medical, home-made ones) may well be one of those “reasonable precautions” that you are expected to take as an Employer.
But what if there is a shortage of face masks? Well, here’s the thing, precautionary steps in the workplace apply to both Employer and employee, and the Employer could insist that each employee arrives to work wearing some or other form of face protection, until proper masks are obtainable. Obviously, communications of this nature would need to be handled sensitively.
Are protective gloves needed?
Again, this is partly dependent on the nature of the work environment. There is currently a “debate” about the wearing of gloves and handling of foodstuffs and/or medicines. Unfortunately, gloves may give a false sense of security, and the wearer then doesn’t practice good hygiene. In addition, the wearer may use a contaminated glove to repeatedly adjust their mask, which means they’re touching their face and actively spreading germs. However, masks (in combination with good hygiene behaviours) may still offer a barrier to infection, when working in an environment where social distancing is not always possible/enforceable 100% of the time.
Obviously, everything stated above is for general informational purposes only, and does not constitute either legal or medical advice. Clearly, much higher standards and protocols would apply in a hospital environment, for example. Should you require legal advice, we would first need to obtain more details about your specific situation, and would then deal with it on the specific facts at our disposal.
Annual/Unpaid Leave during the lockdown:
- In a nutshell, unless the Disaster Management Act or its Regulations change (or some other statutory pronouncement is made), there is currently no legal obligation on Employers to pay employees during the lockdown, unless such employees are engaged in essential services or are able to operate remotely. This is premised on a combination of force majeure (and/or the common law principle of supervening impossibility of performance – where neither party may perform due to the lockdown), and the principle of “no-work/no-pay”. Clearly, this is different to the moral or ethical position, and the strict legal position may still end up being challenged.
- Annual leave itself, is generally taken by agreement between employer and individual employee. However, in terms of the Basic Conditions of Employment Act (BCEA), the Employer may still determine when employees take their annual leave.
- The alternatives are that annual leave may only be taken as contractually stipulated in an employment contract, or in a collective agreement or in an industry-wide Bargaining Council agreement.
- The further alternative is unpaid leave, but only after annual leave has been exhausted. In such instances, the employee may insist on taking annual leave in terms of section 20(6) of the BCEA.
- The Chief Director of the Dept of Employment and Labour (DEL) recently “requested” employers not to enforce annual leave (and, by implication, not to impose unpaid leave) during the COVID-19 lockdown, and has “encouraged” Employers to avail themselves of the COVID-19 Temporary Employer/Employee Relief Scheme (or “TERS”) instead, in those instances where employees are unable to work remotely from home.
- The TERS option is basically where unpaid or partially paid salaries may (partly) be covered by the UIF subject to certain conditions. This is going to be the subject matter of my next contribution – watch this space, as they say.
Brookes Attorneys are actively advising clients on their rights. For more specific advice and assistance please contact Carlo Torino, our Employment Law specialist, on 031 035 1055 / 082 773 8130.