This blog is a guide for employers in the metals and engineering sector when applying the Main Agreement and the Basic Conditions of Employment Act to the ‘lockdown’ announced by President Cyril Ramaphosa on 23 March 2020.
Guidelines on managing the lock-down
All employers have all been hit with fast and dramatic changes that we now need to deal with and then apply this to the workplace. The government enforced 21 days lockdown due to COVID19, which also falls into the definition of a force majeure, means that we are entering unchartered territory.
Obviously there are numerous questions regarding pay during this time period, please note key applications in this regard, namely:
- The lockdown period is an unprecedented scenario, beyond the control of the employer (and employees).
- Employers should consider allowing employees to take from their accumulated leave to assist in this time period. The decision to allow employees to apply for normal leave is yours to take, however, if possible it would be morally appropriate to allow for that arrangement. You would be guided by your financial position and affordability.
- Employers must as soon as possible assist employees to apply for special leave of up to 14 days through UIF, please see attachments above that provide further information and advice on this.
- No work no pay will apply on the shop floor and in the offices. However it can be agreed that certain or all office staff can continue to work from home and be paid, this could take the form of partial pay for partial work, or full pay.
- During the lockdown period, employees will still be entitled to be paid for the Public Holidays.
- During the lockdown period no shifts for the leave pay and leave enhancement pay will be lost during this period.
- One could also give consideration to working in time arrangements after the 21 day lockdown period, which will allow companies to catch up lost production and allow employees to catch lost wages. It could be agreed that these extra hours worked are not paid at overtime rates but at normal rates as one catches up lost normal. Section 4 (alternative / flexible working in time arrangements) and section 38 (working in time arrangements) of the Main Agreement gives guidelines on these.
- It must be noted that the banks are prepared to give a three month loan/debt/bond repayment holiday.
Dealing with the pandemic after the lockdown
One would hope that the lockdown has the desired result of reducing the infection rate dramatically or even getting to the point of no new infections as they have managed to achieve in China.
However, there is the possibility that there may be further COVID19 infections after the lockdown across the country. Employers will therefore need to best manage the situation and this will need an understanding of various employment and labour laws including health & safety considerations to manage and mitigate the risk of Covid-19 in the workplace.
SEIFSA has received many queries on how to manage the situation, with queries ranging from a health & safety perspective to general employment contractual laws and obligations, taking into account the Basic Conditions of Employment Act and the Main Agreement, with queries concerning quarantining and payment of remuneration in times of emergencies.
Here are 11 aspects you need to understand how to practically deal with these matters and steps employers can take to safeguard employees.
What is the coronavirus?
The World Health Organisation (WHO) describes coronaviruses as a “family of viruses that cause illness ranging from the common cold to more severe diseases”. At the end of 2019, a novel strain of the coronavirus (now known as Covid-19) broke out in Wuhan, China. Since the outbreak, and at the time of writing this article the WHO has reported that there have been over 250 000 confirmed cases of Covid-19 across the world, (nearly every country in the world had reported confirmed infections of Covid-19), including African countries (in ten days the number of African countries with confirmed cases rose from 5 to 35 countries) and over 10 000 people across the world have died after contracting Covid-19.
Of significance and a glimmer of hope, China advised on 19 March, that, on 18 March, there had been NO new infections in China. The only new cases were from people who had flew into China from other countries.
At the end of January 2020, the WHO declared the outbreak of Covid-19 as a public health emergency of international concern.
From a health & safety perspective, what legal obligations does an employer have in light of the global outbreak of Covid-19?
The Occupational Health and Safety Act 85 of 1993 places an express obligation on the employer to maintain a working environment that is safe and healthy. On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as it is reasonably practicable. Within the context of Covid-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace.
Practically, the employer can ensure a healthy working environment by ensuring that the workplace is clean and hygienic, promoting regular hand-washing by employees, promoting good respiratory hygiene by employees, social distancing (if possible keep a two meter gap between each other), not coming to work if displaying cold or flu type symptoms and keeping employees informed on developments related to Covid-19.
What practical steps can an employer take to ensure that the workplace is safeguarded from Covid-19?
The employer should conduct a risk assessment to determine the likelihood of contamination in the workplace. This assessment should include a contingency and business continuity plan should there be an outbreak of the illness.
Employers should consider the following proactive steps given the scale of the illness globally
- Follow health advice and information: the employer should follow health advice from the WHO (as an international source) and the Department of Health and the National Institute of Communicable Diseases (as local sources).
- Communicate with employees and provide updates on Covid-19 to employees, especially if these can be provided in positive manner to address any irrational fears that employees may have.
- The employer must also advise on its approach at work regarding attendance, leave, isolation and preventing the spread of infection. The employer may also wish to display posters that provide information on the illness and hygiene.
- Prevent the spread of infection: the employer should ensure that there are adequate facilities for employees to wash and/or sanitise their hands regularly within the workplace. Employees with a mild cough or low-grade fever (37.3 or more) should be encouraged to stay at home and seek medical attention. To properly manage the situation the employer would require sick notes
- Identify vulnerable workers: Covid-19 poses a greater risk to employees with weakened immune systems and long-term health conditions. Vulnerable workers include pregnant employees and disabled employees. Employers should pay special attention to such employees, whether it be taking further measures to provide a safer working environment, such as providing masks, gloves and ensuring that these employees maintain a social distance with others. Consideration could also be given to allow these employees to remain at home during this time.
- Update emergency contact information: employees should be required to review and update their emergency contact information.
Employees should however be encouraged to disclose general symptoms of a cold or flu to the HR Department without delay. Such employees will be required to stay at home until such time they are fit to return to work. They will however still be required to justify their absence by means of a medical certificate issued by a registered medical practitioner. Should the employee be able to justify absence from work by means of such a certificate, the period of absence will be paid from the employee’s sick leave entitlement. Should the employee not have sufficient sick leave available, such absence will unfortunately be without any remuneration or benefits, unless annual leave is available for payment purposes or if otherwise decided by the employer.
Managing Covid-19 – Quarantine and the Main Agreement’s short-time and lay-off provisions:
Let us consider various scenarios and give consideration to the Main Agreement and the Basic Conditions of Employment Act:
Scenario 1: If a medical doctor places an employee in quarantine, the employee needs a medical certificate, then the employee is entitled to sick leave.
Scenario 2: The employer enforces compulsory quarantine on one or more employees. The employee will not be on sick leave unless a medical certificate has been issued, and this would normally be paid time off. However for employees covered by the Main Agreement, one can consider using the short-time provision in section 7 and the lay-off provision in Annexure A of the Main Agreement. To note that this forced quarantining by the employer is not annual leave, however by mutual agreement annual leave may be used.
Scenario 3: The employer sends everyone home. For employees covered by the Main Agreement, the employer may make use of the short-time and lay-off provisions contained in the Main Agreement. However for employees covered by the BCEA, one would need to look at alternative arrangements as the BCEA does not have a short-time or lay-off provision. Alternative arrangements one can consider could be:
- one can consider working from home,
- working at an alternative site,
- working a skeleton staff on site in a strictly regulated environment to ensure no infections take place,
- working skeleton staff on a multiple shift system, to ensure minimum personnel are on site at any given time, with sterilization taking place between shifts. or
- any suitable and mutually agreed arrangement, like annual leave or ‘special leave’. Any ‘special leave’ given by the employer is at the employers discretion, as there is no legislation obligating the employer to make ‘special leave provisions’.
Scenario 4: Where there is a self-imposed quarantine by an employee, then it would be unpaid, unless the employee claims sick leave and provides a sick note as required.
Short-time – section 7 of the Main Agreement
Let’s give consideration to, and more fully answer questions that there may be regarding an employer implementing short-time (Section 7, Main Agreement), to enable social distancing and / or to compensate for the economic effects of COVID-19.
The short-time provisions do require that management spread the available work among employees as far as is practicable. However it must be noted that short-time can be implemented in such a way that only some employees are affected and others not, or that some employees are more affected than others.
The Main Agreement in section 7 says that one can implement short-time due to, “Justifiable contingencies and/or unforeseen contingencies and/or circumstances beyond the control of the employer”. Contingencies are also defined as emergencies, and certainly COVID-19 and the possible negative economic impact are emergencies and contingencies. How short can the short-time be? The Main Agreement allows short-time to be as short as four consecutive hours in a week, and the employer would be required to pay the four hours.
Employers in a state of emergency may therefore implement short-time, whether it be to enforce a quarantine and send employees home, or to implement skeleton shifts, where you would have only a portion of the employees working on certain days and the rest would be off.
One can also consider having split shifts in any one day, don’t forget to disinfect between shifts!
Please note! – new UIF benefits to compensate for reduced pay due to short-time, lay-offs or for being quarantined. If employees end up getting less than the UIF benefit that they would get if they were unemployed, the UIF will top up an employees pay so that they can get the same financial benefit as if they were unemployed
Lay-offs – Annexure A of the Main Agreement
An employer may also consider implementing Lay-offs (Section 4, Annexure A, Main Agreement) to compensate for the economic effects of COVID-19?
Lay-off is a temporary suspension of employment without pay for a minimum of 5 clear working days due to a reduction of work or due to other economic circumstances at an establishment or section thereof .The lay-off may not continue for more than 8 weeks, unless agreed upon. The employer must give notice, which must reach stakeholders 14 days before intended lay-off is to begin. If pressed for time and urgent relief is sought, lay-offs may not be the best procedure to follow, because of the 14 day notice period. One could however implement short-time first and then submit the lay-off notice, with the intention to proceed on to a lay-off.
Working in-time arrangements – section 38 of the Main Agreement
Companies can also consider an arrangement with the employees to work in lost time so that employees can catch up the hours and pay that have been lost. This will also allow the employer to catch up on lost production. It can be agreed that the hours that are being caught up are paid at normal time, this would also assist employers in minimising overtime pay.
What if an employee requests self-quarantine?
In the case of voluntary quarantine (i.e. quarantine at the request of the employee for precautionary purposes), the employee is not sick and therefore, is not entitled to sick leave. There is the possibility that if employees are forced to take unpaid leave or annual leave in these circumstances, they may opt not to self-quarantine. We therefore recommend that the company consider initiatives to encourage employees to come forward and not hide any infection that they may have. These initiatives could be special paid leave, working from home, which will allow employees to be paid, or any other workable arrangements which will be mutually beneficial, such as being able to catch time up and thereby not lose pay.
The employer must carefully consider the circumstances under which special paid leave will be awarded to employees. These circumstances must be made clear to employees. It should be an option of last resort as it may be open to abuse by employees.
If the illness spreads across South Africa, the reality for employers is that employees may request to be placed in quarantine to minimise their risk of infection. In this instance, the employer will need to consider implementing remote working for employees who can work from home, and other initiatives that are mutually beneficial.
What happens after the quarantine period?
After the quarantine period and even if an employee does not display any symptoms, the employer may nevertheless require the employee to be tested by a medical practitioner and to provide the employer with a medical certificate confirming that the employee can return to work.
What is a reasonable period of quarantine?
The WHO has indicated that a person should be in quarantine for a period of at least 14 days.
What if an employee contracts Covid-19?
In such an instance, the employer should apply its sick leave policy to such an employee. The employee must obtain a medical certificate and any time out of the office will be considered as sick leave.
Due to the nature of the illness, an employee with Covid-19 should not be permitted to return to work until that employee is cleared to do so by a medical practitioner.
How should an employer manage employees who travel out of South Africa at this time?
The employer should issue clear travel guidelines to its employees on international travel, particularly to countries affected by Covid-19.
The employer may elect to place a moratorium on business travel until such time as Covid-19 is contained. If this is not possible, a moratorium should be placed on business travel to affected countries.
It may be more challenging to regulate personal/holiday travel by employees. Employees should be encouraged not to travel to affected countries. Importantly, employees who nevertheless choose do so should not be allowed to immediately return to work after such travel. Such employees should be required to self-isolate (compulsory quarantine) for at least 14 days. Employees should be informed that they must take all reasonable steps to avoid exposure to the illness which may mean cancelling or postponing international travel until Covid-19 is contained.
The employer should also bear in mind that travel by employees to countries which are currently unaffected by Covid-19 could still pose a risk of infection as such countries may become affected at any time. In any event, at this stage, the risk of infection is high given the nature of travel, exposure to different people of different nationalities particularly on flights with multiple legs.
It is advisable for employers to consider requesting all employees to disclose international travel (to all countries) undertaken by them (or any person who they live with) since 1 February 2020. This may assist the employer with its risk assessment to determine the likelihood of contamination in the workplace.
The Department of Labour’s COVID-19 guideline
The Department has developed a COVID-19 guideline. This COVID-19 planning guidance was developed based on traditional infection prevention and occupational hygiene practices. It focuses on the need for employers to implement the following:
Engineering controls – isolating employees from work-related hazards, installing high-efficiency air filters, increasing ventilation rates in the work environment and installing physical barriers such as face shields to provide ventilation.
Administrative controls – these controls require action by the employee and employer. Examples of administrative controls include: encouraging sick workers to stay at home; minimizing contact among workers, clients and customers by replacing face-to-face meetings with virtual communications e.g. conference calls, Skype, etc.; minimising the number of workers on site at any given time e.g. rotation or shift work; discontinuing nonessential local and international travel; regularly check travel advice from the Department of Health at: www.health.gov.za; developing emergency communications plans, including a task team for answering workers’ concerns and internet-based communications, if feasible, providing workers with up-to-date education and training on COVID-19 risk factors and protective behaviours (e.g. cough etiquette and care of PPE); training workers who need to use protective clothing and equipment on how to put it on, use/wear it and take it off correctly, including in the context of their current and potential duties. Training material should be easy to understand and available in the appropriate language and literacy level for all workers.
Safe Work Practices – these include procedures for safe and proper work used to reduce the duration, frequency, or intensity of exposure to a hazard. Provide resources and a work environment that promotes personal hygiene. For example, no-touch refuse bins, hand soap, alcohol-based hand rubs containing at least 70 percent alcohol, disinfectants, and disposable towels for workers to clean their hands and their work surfaces, regular hand washing or using of alcohol-based hand rubs, and display handwashing signs in restrooms.
Personal Protective Equipment (PPE) – while engineering and administrative controls are considered more effective in minimizing exposure to SARS-CoV-2, PPE may also be needed to prevent certain exposures. Examples of PPE include: gloves, goggles, face shields, face masks, gowns, aprons, coats, overalls, hair and shoe covers and respiratory protection, when appropriate. Employers should check the NICD website regularly for updates about recommended PPE.
Employers and workers should use this planning guidance to help identify risk levels in workplace settings and to determine any appropriate control measures to implement. Additional guidance may be needed as COVID-19 outbreak conditions change. In the event that new information about the virus, its transmission, and impact, becomes available you may have to modify your plans accordingly.
For employers who have already planned for influenza outbreaks involving many staff members, planning for COVID-19 may involve updating plans to address the specific exposure risks, sources of exposure, routes of transmission, and other unique characteristics of respiratory infections (i.e., compared to influenza virus outbreaks).
In the case of suspected exposure contact the coronavirus hotline in South Africa: 0800 02 9999
The Department of Employment and Labour will for now keep its labour centres opened. The Department has put in place a Crisis Management Team which will be guided by the Department’s business continuity plan. The Crisis Management Team will meet every day at 09h00 to assess the situation and put measures in place to promote health and safety of staff and its clients.
The queues at labour centres and services provided will be managed to adhere to the 100 people not gathering in one place at the same time.
- Regulations issued on 18 March 2020 in terms of the Disaster Management Act of 2002.
It is important to be familiar with the recently released Regulations issued on 18 March 2020 in terms of the Disaster Management Act of 2002. These have been issued with the intention to minimise the effects of this disaster (Covid-19), and include the –
- banning of gatherings of more than 100 people,
- banning of the assembly of more than 50 people on premises where liquor is sold and consumed,
- places that sell liquor must be closed between 6pm and 9am, and between 1pm and 9am on Sundays and public holidays, this includes places like restaurants and bars where alcohol is sold,
- no person who has been tested positive for the corona virus may refuse quarantining,
- places of quarantining will be established,
- schools to be closed from 18 March until 15 April,
- any person that contravenes any of the above is guilty of an offence, and could be imprisoned for 6 months and receive a fine.
A company should advise employees of guidelines that they will be following, such as advising employees that,
- If you have been tested positive for the Coronavirus and have a sick note from a doctor, you will be required to stay at home in quarantine. This will be treated as sick leave.
- If you choose not to come to work, and do not have a doctor’s sick note, time taken will be treated as unpaid leave or may be taken against your annual leave if you have accumulated days.
- If you cannot get to work because of a lack of public transport, taxis, trains etc the principle of no work no pay will apply.
- Please ensure that you wash your hands regularly
- Maintain social distancing
- Avoid touching eyes, nose and mouth
- Practice respiratory hygiene
- If you have fever, cough and difficulty breathing, see medical care early
Employees should disclose general symptoms of a cold or flu to the HR Department without delay.
In order to manage the risk of contamination effectively, employers should consider appointing an internal committee of professionals. The committee will be responsible for issues such as monitoring the spread of Covid-19, assessing the risk of contamination and taking measures to ensure that the workplace is healthy and safe. The committee should include representatives from the health & safety, human resources and risk and compliance departments of the employer.
We wish you all the best during this trying period and pray that you, your loved ones and employees remain unaffected.