What are your employment rights when a pandemic like COVID-19 hits?
The Covid-19 outbreak has resulted in countries around the world declaring a state of disaster and South Africa is no exception. Gatherings of more than 100 people are prohibited in South Africa and travel bans have been put in place.
With countries putting various self-isolation measures into place and going into lockdown it’s rapidly transforming and impacting the workplace. Employers are having to adapt to the changing environment, ensure workplace health and sanitation and revise their policies.
While the South African government has made groundbreaking legislative changes as the pandemic unfolds, workplace law has not yet evolved to keep pace with the changing environment. Here we’ll unpack to what extent the current employment legislation protects the rights of workers during the Coronavirus pandemic.
Are you entitled to sick leave?
Sick leave is regulated by the Basic Conditions of Employment Act, and is calculated over 36 months. Monique Jefferson, director of law firm DLA Piper South Africa explains: “During a sick leave cycle an employee can take the number of days they would work in a six-week period, i.e. 30 days if you work a five-day week and 36 days if you work a six-day week. During the first six months of employment, you are only entitled to one day for every 26 days worked.”
If you are permanent staff, you are entitled to sick leave but there are strict laws surrounding it, adds Jefferson. “As an employee, you have to produce a medical certificate if you are ill for more than two consecutive days. If you’re not sick and want to take preventative measures or are in quarantine, that is not strictly covered by law.”
“If you self-isolate without seeing someone and don’t have a medical certificate, then the company can take the days that you’ve taken off from annual leave or make you take unpaid leave,” adds Arlene Leggat, president of the South African Payroll Association.
For temporary and part-time staff, the law only protects you if you work for more than 24 hours per month, according to Jefferson. “Anyone who works less than 24 hours per month for an employer won’t be entitled to sick leave.”
Can you insist on working from home, even if your employer hasn’t implemented this?
Employers have a common-law duty to ensure that the workplace is safe under the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (COIDA).
If they can’t ensure your safety or health, then you may have a reasonable basis to argue that you should work from home. That will, however, depends on the objective facts.
But, says Jefferson: “There is no legal entitlement to work from home. You need to get permission from your employer. It’s a balancing of rights to render services at work and the employees right to protect health. If an employer says no – you have to come to work – then that is an instruction.”
She warns that you could still go through disciplinary action if you disregard their instruction and if they’ve gone through measures to protect workers’ safety and health. “If there are no Covid-19 cases in the office and they are taking extra cleaning measures and they want you to come to the office, then that probably is a reasonable instruction. But if someone at work has Coronavirus and there hasn’t been a deep clean, it becomes more reasonable for the employee to say they are working from home.”
Can you refuse to attend meetings or travel for work if an employer asks you to?
South Africa has been placed under lockdown, meaning those of us not working in essential services should stay at home. There’s also a greater risk of spreading the virus as people travel to and from work and visit clients, so employers need to take this into account.
You have a right to workplace safety and if employers can’t guarantee this, then you may be able to refuse to attend face to face meetings and travel for work.
Leggat points out: “If you can come up with an alternative way of doing things then you should be fine. You can say ‘I don’t need to as I can conduct meetings via Zoom, Skype and WhatsApp’.”
Employees may initially face some resistance to the changes that they may ask of their employers, particularly if a company has been set in its ways for a number of years.
But Leggat feels that in the wake of this pandemic, things will change and potentially even transform the way we work in the future.
“I do think it will change the way we work and how people perceive it. We are so used to working at our desk that the thought of working remotely has never occurred. It will open people’s eyes to what is possible in the world of work.”
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