Part 1 of a 2-part series of articles providing some guidance and assistance to employers in light of COVID-19, and its implications for the workplace.

Introduction

The Coronavirus (COVID-19) outbreak was declared a pandemic by the World Health Organisation (WHO) on 11 March 2020.

On 15 March 2020, in response to the magnitude and severity of the COVID-19 outbreak, South Africa declared a national state of disaster and President Cyril Ramaphosa announced significant measures that would be put in place in an attempt to inhibit the spread of COVID-19 in South Africa.

On 18 March 2020, regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs in accordance with the National Disaster Management Act 57 of 2002, came into effect.

On 23 March 2020, President Ramaphosa declared that there would be a national lockdown from 23h59 on 26 March 2020 for a period of 21 days until 16 April 2020 to further prevent the spread of COVID-19 in South Africa.

Needless to say, and as has been recognised by just about all stakeholders, the lockdown will have a significant impact on businesses and consequently on employees in South Africa. Cognisant of this, the Government has put certain measures in place to try to mitigate the effects on employers and employees. In addition, to fully understand these important measures, employers and employees still need to be cognisant of the basic rules and laws governing employment relationships, as employers and employees are still bound by them, even during this unique time in South Africa's history.

This article is Part 1 of a 2-part series. In this Part 1, the Government's interventions in an attempt to minimise the economic impact due to COVID-19 will be explained and outlined. In Part 2, we will canvass some COVID-19 workplace related issues and considerations that stem from South Africa's general and pre-state of disaster employment law.

As all the responsible Government departments are sailing in uncharted waters, it should be expected that some of the practicalities and details relating to the measures put into place may require further detail and clarity, which will be provided in the coming weeks.

Department of Labour guidelines and directions

Guidelines

On 17 March 2020, the Department of Labour (DoL) published a guideline which outlines the strategies that employers should follow to minimise their employees' risk of exposure. The Guideline inter alia:

  • outlines basic measures advocated by the WHO for individuals to follow to reduce their risk of contracting COVID-19;
  • provides guidance on classifying the risk of worker exposure to COVID-19. The Guideline categorises four different risk exposure levels for workers, being: lower exposure risk, medium exposure risk, high exposure risk and very high exposure risk; and
  • outlines four different types of workplace controls and interventions to be implemented by employers, being engineering controls, administrative controls, safe work practices and the use of personal protective equipment.

Directions

On 26 March 2020, the DoL published a directive in respect of the administration of the COVID-19 Temporary Employee/Employer Relief Scheme (C19 TERS) which will be funded through the National Disaster Benefit. The Directive is effective for a period of three months with effect from 26 March 2020 and provides that:

  • the purpose of the Directive is, amongst other things, to minimise the economic impact of loss of employment due to COVID-19;
  • during the lockdown, many employers will have to shut down and employees may be laid off temporarily and may not be paid;
  • should an employer have to close its operations for a period of three months or less due to the COVID-19 pandemic and suffer financial distress, it shall qualify for the C19 TERS benefit if:
    - it is registered with the Unemployment Insurance Fund (UIF);
    - it has complied with the application procedure; and
    - its closure is directly linked to the COVID-19 pandemic;
  • the benefit shall be de-linked from the UIF's normal benefits and therefore the normal rule, being that for every four days worked the employee accumulates a one day's credit to the maximum of 365 days for every four years, will not apply;
  • the benefit will only be for the cost of salary of employees during the temporary closure and the salary benefit will be capped to a maximum amount of R17 712.00 per month per employee and in terms of the income replacement sliding scale (38%-60%) as provided for in Unemployment Insurance Act 63 of 2001. However, should an employee's income determined in terms of the income replacement sliding scale fall below the minimum wage of the sector concerned, the employee will be paid a replacement income equal to the minimum wage of the sector concerned;
  • an employee will qualify for an illness benefit in circumstances where he/she is quarantined in accordance with the Regulations due to the COVID-19 pandemic. Where the employee is in an agreed self-quarantine for 14 days both the employer and employee must submit confirmation of this. Confirmation letters will suffice in this regard (i.e. a medical certificate will not be required for the first 14 days). Where the employee is quarantined for more than 14 days, a medical certificate must be submitted by a medical practitioner for continued payments.

Employers must apply by reporting their closure via email to Covid19ters@labour.gov.za. Employers will then receive an automatic response setting out the application process to be followed.

COIDA and sick leave benefits

On 20 March 2020, the DoL issued a notice in respect of compensation for occupationally-acquired COVID-19 under the Compensation for Occupational Injuries and Diseases Act (COIDA), which notice was published in the Government Gazette on 23 March 2020. The notice deals with occupationally acquired COVID-19 resulting from single or multiple exposures to confirmed case(s) of COVID-19 in the workplace or after an official trip to high-risk countries or areas, in a previously COVID-19-free individual.

The notice states that occupationally-acquired COVID-19 is a disease contracted by an employee, as defined in COIDA, arising out of and in the course of the employee's employment. All employees who contract COVID-19 at their places of employment will accordingly be supported through the Workmen's Compensation Fund (Fund) in accordance with COIDA.

In terms of the notice, occupationally-acquired COVID-19 diagnosis relies on:

  • occupational exposure to a known course of COVID-19;
  • a reliable diagnosis of COVID-19 as per the WHO guidelines;
  • an approved official trip and travel history to countries and/or areas of high risk for COVID-19 on work assignment;
  • a presumed high-risk work environment where transmission of COVID-19 is inherently prevalent; and
  • a chronological sequence between the work exposure and the development of symptoms.

The notice categorises occupations in accordance with the Guideline discussed above, into very high exposure risk occupations, high exposure risk occupations, medium exposure risk occupations and low exposure risk occupations. Albeit the majority of occupationally-acquired COVID-19 cases will be from higher risk occupations, an employee who is diagnosed with occupationally-acquired COVID-19 in terms of the above, will be liable to benefit.

The benefits available in terms of the notice include inter alia:

  • for confirmed cases and where the Compensation Fund has accepted liability, payment of a temporary total disablement benefit from the date of diagnosis up to 30 days;
  • medical aid for a period of not more than 30 days from the date of being diagnosed; and
  • payment of reasonable burial expenses and widow's and dependent's pensions if an employee dies as a result of the complications of COVID-19.

Importantly, the notice states that the employer will be liable to remunerate the employee where the employee is put into self-quarantine on the recommendation of a medical practitioner, in accordance with the Department of Health, WHO or International Labour Organisation guidelines. However, in that instance the employee will qualify for the C19 TERS as discussed above. Furthermore, Employees who are entitled to claim in terms of COIDA will not be entitled to the UIF benefits in respect of the C19 TERS.

Employers should make sure they are fully acquainted with the details of the legislation and should endeavour to keep communication channels open with their employees and assist them in coming to grips with the measures that Government has put in place to assist with the interruptions and risks occasioned by the COVID-19 pandemic.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.