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South African employees will return to work in January at the height of a second coronavirus wave and in conjunction with the reintroduction of new restrictions.
On December 28, 2020, President Cyril Ramaphosa announced that South Africa would move to an adjusted level 3 with immediate effect.
The adjusted Tier 3 regulations were released on December 29, 2020 and contain more restrictions and stricter penalties for non-compliance in order to slow the spread of the virus while keeping an economy running as much as possible.
Below, the law firm Cliffe Dekker Hofmeyr outlined some of the key considerations for employees before returning to work.
Returning from vacation and working from home
When an employee can work from home while in quarantine, the employee can do so and thus will be entitled to his full salary. In cases where an employee cannot work from home, the employee can make use of their annual leave during the quarantine period.
When an employee has exhausted his annual leave, the principle of not working, not receiving pay, will apply and the employee will have a leave without pay.
Employers should alert employees to the fact that they will be asked to self-quarantine upon their return from an active area and that they will need to make use of annual leave or unpaid vacation during this period when they do not they can work from home.
Under the exceptional circumstances of Covid-19, which requires an employee who has returned from a hotspot area to self-quarantine, it can be argued that this does not amount to unfair discrimination.
“Unless the employer can show that the employee’s conduct has damaged the employment relationship in some way, the employer has no right to discipline the employee for conduct outside the workplace,” said Cliffe Dekker Homeyr.
“A balance must be struck between an employer maintaining a safe work environment after the holiday season and an invasion of an employee’s privacy. Employers can only encourage employees to adhere to government protocols outside of the workplace. “
Obligations in the workplace
In terms of the adjustment level 3 regulations, an employer has the following obligations and responsibilities:
- Comply with all sector-specific or other health and safety protocols issued to date;
- Appoint a compliance officer to enforce the adjusted Level 3 regulations and all other health and safety protocols issued to date;
- Prohibit employees from entering the workplace or performing their duties unless an employee is wearing a face mask;
- Determine the area of the workplace floor plan and the number of people who can enter the workplace based on the area of the floor plan, while maintaining a physical distance of 1.5 meters;
- Make sure all people queuing inside or outside your premises keep a physical distance of 1.5 meters;
- Take measures to enforce the physical distance of 1.5 meters in your workplace, including implementing measures such as teleworking, restricting face-to-face meetings, and taking special measures in relation to employees who are considered vulnerable due to your age or comorbidities;
- Provide hand sanitizers outside of their facilities.
Meetings and curfews
Meetings in the workplace are allowed as long as people maintain a physical distance of 1.5 meters and comply with all health and safety protocols, including sanitation and the use of face masks.
All commercial premises are limited to 50% of their surface capacity, which includes both customers and employees, subject to strict health protocols and physical distance restrictions.
The following businesses must close to the public before 8:00 p.m.
- Cinemas;
- Theaters;
- Casinos;
- Museums and galeries;
- Gyms;
- Restaurants.
Penalties
Employers who commit the following offenses will be punished with a fine or a prison term not exceeding six months, or with a fine and a prison term:
- Exceeding the customer and / or employee allowance based on the determination of their floor plan;
- The sale, dispensing and distribution of alcohol;
- If applicable, breach of the 8:00 p.m. curfew; and
- Compliance with restrictions related to meeting limitations.
Can an employer institute a mandatory vaccination policy once a vaccine is available?
The essence of mandatory vaccination is that employers have an obligation to protect their employees and maintain a healthy and safe work environment, said Cliffe Dekker Hofmeyr.
When considering whether to implement a mandatory vaccination policy, employers should consider their individual workplaces and consider whether such a policy is really necessary by taking into account the following factors:
- The feasibility of continued remote work;
- The number of vulnerable employees in the workplace;
- The effectiveness of additional PPE when needed;
- Temporary alternative placements;
- Exposure of employees to the public
- The number of employees with religious and / or medical reasons to object.
“The requirement for such a policy must be determined on a case-by-case basis and the objections of employees or potential employees must also be duly considered with respect to the requirement to balance various rights.
“Employers need to ensure that their infected employee records are kept up to date, as this is a factor that must also be taken into account,” said Cliffe Dekker Hofmeyr.
Read: Government knocks down ‘level 5 lockdown’ rumors
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