What risk mitigation efforts should the prudent employer take before employees return to the workplace?
The Occupational Health and Safety Act of 1993 (OHSA) places a general duty on employers to provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to its employees. The OHSA places a corresponding duty on employees to take reasonable care to safeguard their own health and safety.
South Africa has adopted a five stage phased approach to dealing with the national lockdown. Each stage (Alert Level) permits varying operation of business, with Alert Level 5 being the most restrictive. On 25 July 2021, the President of South Africa announced that, as of 26 July 2021, the whole country will move from an adjusted alert level 4 to adjusted alert level 3 in terms of section 27(2) of the Disaster Management Act, 2002. The new Adjusted Level 3 Regulations, (Regulations) were published on 25 July 2021. The current state of national disaster was extended on 12 July 2021 and is effective until 15 August 2021, however, it is probable that this date may be extended once again.
A new Consolidated Covid-19 Direction on Health and Safety in the Workplace was gazetted on 11 June 2021 (Revised Directive). The Revised Directive replaces the Directive, which initially came into effect on 4 June 2020, and which was previously revised on 1 October 2020. The Revised Directive is published in terms of the Regulations and is accordingly mandatory for all employers, except those falling under a direction dealing with health and safety issued by another Minister under the Regulations. The Revised Directive sets out the obligations on employers to conduct a risk assessment and, on the basis of that assessment, develop and implement a workplace plan outlining the measures to be implemented for the phased return to work of its employees and the workplace controls to mitigate the risk of transmission at the workplace.
In conducting a risk assessment, employers are required to identify:
- Whether its workplace, and the nature of each job within the workplace, would constitute a very high, high, medium or low exposure risk to the exposure of COVID-19;
- Whether any of its employees are at particularly high risk i.e. if they are 60 years old or older and/or have comorbidities that would place them at higher risk of complications or death if infected (“vulnerable employees”).
Employers are required to consult on the risk assessment and plan with any representative trade union, any health and safety committee or, in the absence of a committee, a health and safety representative or employee representative. The plan must also be made available for inspection.
Notably, the Revised Directive includes a requirement that an employer undertake a risk assessment, within 21 days of the amendment coming into force (being 2 July 2021), taking into account the operational requirements of the workplace, in order to inform a decision as to whether the employer intends to make vaccination mandatory and, if so, to identify those employees who are at risk of severe COVID-19 disease or death due to their age or comorbidities that must be vaccinated.
Furthermore, the Revised Directive requires that the employer develop a Workplace Plan, or to amend an existing one, describing the protective measures in place for the phased return of its employees before opening and the measures that an employer intends to implement in respect of the vaccination of its employees in accordance with the Guidelines contained in Annexure C to the Revised Directive (Vaccine Guidelines).
The Revised Directive requires that the risk assessment plan notify all workers of the contents of the Revised Directive and the manner in which the employer intends to implement same. Furthermore, it requires that the employer notify employees that, if they are sick or have symptoms of COVID-19, that they must not come to work and must take paid sick leave. Where an employee’s sick leave entitlement has been exhausted, application must be made for an illness benefit in terms of section 20 of the Unemployment Insurance Act 63 of 2001.
Furthermore, the Revised Directive requires an employer to provide its employees with information that raises awareness – by means of leaflets or notices placed in conspicuous places – as to:
- The dangers of the virus, the manner of its transmission, the measures to prevent transmission such as personal hygiene, social distancing, use of masks, cough etiquette and where to go for screening and testing if presenting with COVID-19 related symptoms;
- The nature of vaccines used in the country, the benefits associated with these COVID-19 vaccines, the contra-indications for vaccination and the nature and risk of any serious side effects such as severe allergic reactions.
In drafting and implementing a workplace plan, employers must address:
- The date the workplace will open and the hours of opening;
- Which employees are permitted to work in office and which are required to work from home;
- The plans and timetable for a phased in approach for the return to work;
- Identification of vulnerable employees;
- Methods to minimise the number of employees at the workplace at any one time;
- Social distancing, hygiene, screening measures and testing protocols;
- Provision and use of personal protective equipment (PPE);
- Training of employees and designating an employee as a compliance officer (including the details of such employee);
- Protocols for instances where employees display symptoms or test positive for the virus;
- Protection of symptomatic or diagnosed employees from unfair discrimination and victimization; and
- The special measures to be implemented in respect of vulnerable employees and a list of vulnerable employees (confidential);
- Procedure to resolve any issue that may arise from the exercise by an employee of the right to refuse to work in circumstances in which the employee has reasonable justification to believe that there is an imminent and serious risk of their exposure to COVID-19 in the workplace; and
- Furthermore, the plan must – subject to any collective agreement that determines otherwise – whether the employer is planning to make it mandatory for employees identified as vulnerable to be vaccinated as and when the COVID-19 vaccines become available in respect of those employees.
All employers with more than 50 employees must now submit the following categories of data to the National Institute for Occupational Health (NIOH) electronically:
- each employee’s vulnerability status for serious outcomes of a Covid-19 infection;
- details of the daily symptom screening data;
- details of employees who test positive for Covid-19;
- the number of employees identified as high-risk contacts (and who have been quarantined) as a result of exposure to a worker who has tested positive for Covid-19; and
- details on the post-infection outcomes of those testing positive, including the return to work assessment outcome.
Vulnerability status data must be provided once in respect of each employee. The remaining data is to be submitted weekly (before Tuesday of each week).
Employees must be informed that their data is being submitted to the NIOH and that the processing of such data is in compliance with the Protection of Personal Information Act 4 of 2013 (POPI).
Certain sectors have published sector specific workplace plans which employers must comply with.
Who should be involved in the decisions to return to the workplace?
Generally, senior management (the CEO or head of the institution, operations managers, senior HR executives, team leaders and internal legal counsel) will be consulted in relation to commencing the phased return to work. Whether employees will be required to return to work will depend largely on the nature of the business, the nature of the employee’s duties, and whether the employee is able to work remotely. Employees over the age of 60 and those with comorbidities should be consulted with to determine whether the employee is capable of returning to the workplace and whether there are any special measures that may be effected by the employer to reduce the potential risk of infection in relation to these employees.
What can the prudent employer do to ensure physical distancing in terms of the work space?
The Regulations provide that employers must arrange the workplace in a manner that ensures minimum contact between employees and must, as far as reasonably practicable, ensure a distance of one and a half meters between workers at all times. Where it is not practicable to rearrange the workplace to ensure minimal contact, employers are required to install physical barriers between workstations or, where necessary, provide employees with sufficient PPE based on the risks associated with their specific job types.
However, it is important to note that every business premise is subject to a limitation of 50 percent of the floor space, which includes customers and employees, and subject to strict adherence to all health protocols including wearing of face masks, sanitising and social distancing measures.
Significantly, the Adjusted Regulations provides that a business will be guilty of an offence if its premises exceed the maximum number of customers and employees and, if convicted, will be liable to a fine or imprisonment not exceeding six months. Note that there is no specific number of customers and employees permitted – but this is based on the spacing requirements as set out above.
In order to maintain social distancing, the Regulations and the Directive require employers to:
- measure the area of their floor space to determine the maximum number of persons to be allowed at the workplace at any given time;
- re-configure work-stations;
- regulate use of common areas such as staff canteens and locker rooms;
- erect physical barriers where necessary and practicable;
- provide PPE such as cloth face masks, face shields and aprons; and
- ensure that members of the public comply with social distancing when on the employer’s premises.
If an employer does not comply with social distancing requirements, they may be ordered to shut-down operations until adequate measures are implemented; be liable to a fine or imprisonment under OHSA; be held criminally liable if employees are infected due to negligence or wilful non-compliance; be vulnerable to civil claims by employees; and/or be required to comply with any other court order.
What can the prudent employer do to ensure physical distancing in temporal terms?
Employers are required to arrange for the phased return to work of employees.
Furthermore, there is currently a national curfew in place and only employees performing essential or permitted services in possession of a permit are permitted to leave their homes between 22h00 and 04h00.
The change in working hours, and other working conditions constitute changes to terms and conditions of employment. Consultation with employees and/or trade unions is therefore necessary and employers must take cognisance of any collective agreements in place.
Employers will be able to unilaterally change shift patterns, provided that there is no trade union agreement regulating these shifts and provided that there will be no change to overall working hours.
In order to comply with these requirements, employers are required to:
- where practicable, re-arrange shift patterns, implement a staff rotation roster, stagger work times;
- permit employees to work from home where practicable; and
- reduce face-to-face interaction between employees and members of the public.
What protections should the prudent employer consider implementing, in addition to physical distancing?
The Directive requires employers to implement screening measures to monitor symptoms of employees and their possible exposure to COVID-19. Specifically, the current Regulations state that:
“An employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a cloth face mask, homemade item, or another appropriate item that covers the nose and mouth while performing his or her duties.”
Employers, as well as managers of buildings, are liable on conviction to a fine or to imprisonment for a period not exceeding six months or to both such fine and imprisonment should they fail to take reasonable steps to ensure compliance on their premises. Furthermore, it is now an offence to refuse an instruction from a law enforcement official to wear a face mask. Masks are also required to be worn in the workplace.
Employers are required to comply with the Guidelines issued by the Department of Health in respect of symptom screening and, where required, conduct medical surveillance and testing. Employers are responsible for developing testing protocols when employees demonstrate any symptoms of COVID-19. When employees present with symptoms of Covid-19, employers must not allow the employee to access the workplace. If a symptomatic employee is already present at the workplace, that employee must be isolated, provided with a surgical mask and transported for self-isolation or medical examination and testing. Employers are then required to: assess the risk of transmission to other employees; disinfect the work area; undertake contact tracing; refer all at-risk employees for screening; and take any other appropriate measures to prevent possible transmission.
In terms of the Regulations published on 18 August 2020, employers who fail to take reasonable steps to ensure that employees wear masks at all times will be guilty of and offense and may be liable to a fine and/or imprisonment for up to 6 months.
When screening employees, the following should be observed:
- Employers are required to provide employees and visitors to the workplace with hand sanitizer with at least 70% alcohol content in accordance with the recommendation from the Department of Health. Employers are also responsible for ensuring that there are adequate facilities for washing and drying hands.
- Employers must also take measures to ensure that work surfaces and equipment, common areas and objects are disinfected at regular intervals.
- Cloth face masks are to be provided to employees free of charge, and must be worn while in the workplace and when travelling to and from the workplace.
- Employers must keep the workplace well-ventilated to reduce the viral load in the workplace.
- PPE should be provided to employees where recommended by the National Department of Health, the National Institute for Communicable Diseases or the National Institute for Occupational Health. PPE should also be provided when required by any specific sectoral guideline.
- Failure to comply with the Directive renders the same consequence as those stated under section 38 of the OHSA.
How can an employer screen its employees, including temperature testing, COVID-19 testing and questioning?
The Directive requires mandatory screening upon entering the workplace. Furthermore, the Department of Health published a Guideline on the submission of COVID-19 related health data from workplaces to the National Department of Health on 27 November 2020, which outlines the process for employers to submit relevant information of all workers who test positive to the National Institute for Occupational Health.
Employers must screen employees for observable symptoms associated with COVID-19, including fever, cough, sore throat, redness of eyes, or shortness of breath. In addition to the observable symptoms, employees must immediately report if they experience any of the following symptoms, whether inside or outside of the workplace: body aches, loss of smell or taste, nausea, vomiting, diarrhoea; fatigue, and weakness or tiredness.
As of 19 August 2020, a fever has been expressly removed from the list of screening criteria to identify suspected cases of Covid-19 as a result of further research by the Department of Health which found that a fever alone is no longer sufficient to indicate a suspected case of Covid-19, as per the new Symptom Monitoring Guideline. However, the Department of Health screening example form contained in the amended Symptom Monitoring Guideline does still leave room for temperature measurement records and includes a history of fever as a relevant additional symptom. This may have been an accidental inclusion.
Nevertheless, the Directive (which is a binding document) still requires employers to prevent entry to persons who have a fever. Accordingly, temperature testing is still permissible should employers wish to continue this practice. Although, there is no longer a specific temperature threshold at which persons must be refused entry into the workplace.
In screening employees and isolating symptomatic or infected employees, employers are required take necessary steps to protect employees from unfair discrimination and/or victimization.
If an employee displays or reports any of the above symptoms while at the workplace, employers must:
- Isolate the employee from other employees, provide the employee with a surgical mask and arrange for transportation of the employee to their home for self-isolation or to a medical practitioner or hospital for a medical examination or testing; and
- Assess the risk of transmission, disinfect the employee’s workstation and identify and screen other employees who may have been in contact with that employee.
- If there is a low risk of exposure, the employer may permit the employee to continue working and must monitor the employee’s symptoms for 14 days from the date of first contact. If there is a high risk of exposure, the employee must remain in quarantine for 14 days and must be placed on sick leave as per the employee’s contract of employment.
COVID-19 is now recognised as an occupational disease and, where an employee has contracted COVID-19 as a result of occupational exposure, the employer must assist the employee with lodging a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993, in accordance with Notice 193 published on 3 March 2020. Furthermore, a Directive on Compensation for Workplace-Acquired Novel Corona Virus Disease (COVID-19) was published on 23 July 2020.
What are the requirements regarding travel – either to or from the office or business travel?
South Africa is currently under Adjusted Alert Level 3 of the national lockdown and employees do not require permits to travel to work during Alert Level 3, unless they are required to render their services between 22h00 and 04h00.
Employers are encouraged to provide alternate means of transport for employees who make use of public transport to commute to and from work. Where it is not practicable for employers to provide alternate transport, employees must be provided with additional PPE to be used when commuting.
Directives have been issued by the Minister of Transport on the use of public transport, including rail and air transport for business use.
Furthermore, regulations have been issued with regard to cross-border road transport, sea ports and the partial re-opening of land borders.
How does the prudent employer decide which employees should return to the workplace?
The Regulations require employers to develop a plan for the phased return to work of employees in the workplace. Employers must comply with applicable sector specific restrictions.
- The workplace plan must also include lists of staff who can work from home and vulnerable employees who will be required to stay at home or work from home.
- Special measures must be implemented in respect of vulnerable employees.
- In circumstances where special measures are not practicable, vulnerable employees should be placed on either paid or unpaid leave and may be eligible for unemployment benefits.
- Where employees are placed on short-time, employers must spread the working hours evenly throughout its workforce.
What if an employee refuses to return to the workplace?
The Revised Directive has retained the mechanism whereby an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to Covid-19.
Employees who refuse to perform work must, as soon as reasonably practicable, inform their employer of the refusal and the reason for the refusal to work. The Revised Directive now extends the consultation obligation to include a health and safety representative (where there is no committee) and adds a further reporting obligation in the event that the matter cannot be resolved internally. In such circumstances, the employer is under a duty to endeavour to resolve any issue that may arise from the exercise of such right, after consultation with the Covid-19 Compliance Officer and any health and safety committee.
Notably, the Revised Directive provides that no person may threaten or take any action against a person because that person has exercised or intends to exercise their right to refuse to work. Furthermore, no employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work under such circumstances.
Where the matter cannot be resolved, the employer is obliged to notify an inspector of the issue within 24 hours and to advise the employee and all other parties involved in resolving the issue that an inspector has been notified. If the employer does not make the notification, the employee may do so. An inspector may then, in terms of section 30 of the OHSA, issue a prohibition notice if, inter alia, the inspector is of the opinion that any act threatens or is likely to threaten the health and safety of any person.
If there is a dispute as to whether the Employer has contravened this section in disciplining an employee who refuses to work, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or an accredited bargaining council for conciliation and arbitration in accordance with the procedures contained in section 191 of the Labour Relations Act 66 of 1995 (the LRA).
If an employee unreasonably refuses to tender their services then an employer does not have an obligation to remunerate that employee. Employees who refuse to tender their services without good reason may be subject to disciplinary action, and may even be dismissed, for failing to obey a lawful and reasonable instruction.
What other considerations should the prudent employer be thinking about at this time?
There are a number of other considerations to which employers should remain alive, including:
- Possible strike action and/or litigation by trade unions when employers are required to change terms and conditions of employment;
- Restructuring and retrenchments may be necessary following the economic impact of COVID-19;
- The Directive requires employees who exhibit symptoms of the virus to be placed in self-isolation for a period of 10 days. Employers will need to re-consider their leave policies to cater for instances where employees exhaust their sick leave and annual leave while in mandatory isolation;
- Where employees have been in contact with the infected employee or have been working in close proximity to such an employee, employers are required to assess the risk of transmission in respect of these employees and, where the risk of transmission is high, employees must remain in self-quarantine for 10 days and must be placed on sick leave for this period. Low risk employees can return to work as long as they continue to work using their cloth masks and observing the standard precautions. Such employees’ symptoms must be monitored for 10 days from the first point contact that they had with the infected employee. The risk assessment must be conducted in accordance with the Symptom Monitoring Department of Health Guidelines (the Symptom Monitoring Guideline);
- In order to ensure that it is safe for employees to continuing to work after a positive case of Covid-19 has been detected, it is recommended that an employer closes operations and deep cleans the premises before reopening, in accordance with the Positive Worker Department of Health Guidelines;
- The Directive is silent on the procedure for employers to follow in circumstances where a member of an employee’s household is infected with the virus. In this regard, employers should establish procedures in line with the Department of Health guidelines on the clinical management of confirmed and suspected cases and should make these procedures known to their employees;
- The Positive Worker Guidelines note that if an employee is confirmed to have Covid-19 at the workplace, an employer must initiate a joint meeting with the relevant authorities, safety officers, health and safety committees, and relevant management staff to outline actions taken to date as well as the proposed plans of action and timelines to reduce further exposure and transmission risk;
- An inspector designated under the OHSA is empowered to prohibit any action that, in the opinion of the inspector, will threaten or is likely to threaten the health and safety of any person. In terms of these powers an inspector could prevent an employer from re-opening in circumstances where adequate precautions have not been put in place after a positive COVID-19 case has been reported;
- Difficulties may arise in conducting performance reviews where employees have worked from home or were unable to work for extended periods;
- Remote working presents challenges in monitoring and ensuring cyber security and confidentiality;
- Disciplinary hearings, conciliations and arbitrations may have to be conducted remotely;
- Challenges may arise in relation to the right to privacy of employees where they are requested to disclose medical conditions.
What are the safety and employment issues for consideration regarding the vaccines?
Employers must undertake a risk assessment, within 21 days of the commencement of the Revised Directive (being 2 July 2021) and taking into account the operational requirements of the workplace, in order to inform a decision as to whether the employer intends to make vaccination mandatory and, if so, to identify those employees who are at risk of severe COVID-19 disease or death due to their age or comorbidities that must be vaccinated.
Furthermore, the Workplace Plan must describe the measures that an employer intends to implement in respect of the vaccination of its employees in accordance with the Guidelines contained in the Vaccine Guidelines.
Moreover, employers are required to give their employees paid time off to be vaccinated on the date and time that may be required, provided that the employee provides proof of vaccination that has occurred or is to occur during work hours.
Employers should give employees assistance with registration for the Electronic Vaccine Data System (EVDS) Registration Portal for COVID-19.
If the employer decides that vaccination is mandatory, and specifically in respect of vulnerable employees, the vaccination plan must comply with any applicable collective agreement and take into account the Vaccine Guidelines.
In terms of the Vaccine Guidelines, a Vaccination Plan requires that all vulnerable employees be vaccinated in accordance with the national COVID-19 vaccination roll out plan. The Vaccination Plan should provide the following:
- Every vulnerable employee should be notified of:
- The obligation to be vaccinated as and when a vaccine becomes available for that employee;
- The right of an employee to refuse to be vaccinated on constitutional or medical grounds;
- The opportunity for the employee, at the employee’s request, to consult a health and safety representative or an employee representative or trade union official;
- The Employer should provide, in addition to providing the employees with information as to the nature of the vaccines used in South Africa, their benefits and contra-indications, if reasonably practicable, transport to and from the vaccination site allocated in terms of the Electronic Vaccine Data System Registration Portal.
- Should an employee suffer side effects as a result of a COVID-19 vaccination, the employer should give the employee paid time off to recover if the employee is no longer entitled to paid sick leave or to lodge a claim for compensation in terms of the Compensation Commissioner under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). An employer may accept a COVID-10 vaccination certificate issued by an official vaccination site in lieu of a medical certificate.
If an employee refuses to be vaccinated on any constitutional or medical ground, the employer should:
- Counsel the employee and, if requested, allow the employee to seek guidance from a health and safety representative, employee representative or trade union official;
- Refer for further medical evaluation should there be a medical contraindication for vaccination;
- If necessary, take steps to reasonably accommodate the employee in a position that does not require the employee to be vaccinated.
Reasonable accommodation includes any modification or adjustment to a job or the working environment that will allow an employee who fails or refuses to be vaccinated to remain in employment and incorporates the relevant portions of the Code of Good Practice: Employment of People with Disabilities published in terms of the Employment Equity Act 97 of 1999 (the EEA). This might include an adjustment that permits the employee to work offsite or at home or in isolation within the workplace such as an office or a warehouse or working outside of ordinary working hours. In instances of limited contact with others in the workplace, it might include a requirement that the employee wears an N96 mask.
It must be stressed that the Revised Directive does not go so far as to permit an employer to subject an employee to occupational detriment or differential treatment should he or she refuse to undergo vaccination. This will need to be determined by the courts on a case by case basis.
Section 187(1)(f) of the Labour Relations Act 66 of 1995 (the LRA) prohibits dismissals that discriminate against employees based, inter alia, on their religion, conscience, belief, political opinion or culture.
The EEA offers similar protections against discriminatory conduct that falls short of a dismissal. The EEA also protects applicants for employment.
Finally, section 5(2)((c)(iv) of the LRA prohibits employers from prejudicing an employee (or person seeking employment) for refusing to do something that the employer is not lawfully entitled to require them to do.
Until such time as the South African courts have pronounced on this issue, employers are encouraged to obtain specific legal counsel.
To the extent that an employer intends to use the vaccination results as a means of determining which employees are capable of having COVID-19, it would constitute ‘medical testing’ in terms of the EEA which has a broad definition and includes:
“any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the employer to ascertain, whether an employee has any medical condition.”
Medical testing of employees is generally prohibited in terms of section 7(1) of the EEA, even with employees’ consent, (see Pharmaco Distribution (Pty) Ltd v Weideman (JA104/2015)  ZALCJHB 258 at para 26, where the Labour Appeal Court highlighted that consent alone is not sufficient to permit medical testing of employees) unless either of the two below exceptions apply:
- Legislation permits or requires testing (sub-section 7(1)(a) of the EEA); or
- It is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job (sub-section 7(1)(b) of the EEA).
There is no existing legislation that permits an employer to enquire into the vaccination history of its employees (the first exception). However, it is at least arguable that a court would find that it is justifiable to compel an employee, under the second exception, to provide his or her vaccination history as a means of establishing the likelihood that an employee has a medical condition (i.e. COVID-positivity). The invasion of the employee’s privacy would need to be balanced against, in particular, social policies such as the limitation of the spread of COVID-19. Given that an employer may already lawfully enquire into other matters (for example, symptoms commonly associated with COVID-positivity) it seems likely that an enquiry into vaccination history would not be seen as excessive.
A more conservative approach would be one that goes against making such enquiries into the vaccination history of employees. In this regard, an employer has other options available in order to establish possible COVID-positivity, such as the existing mandated screening mechanisms. An employer may also continue to require their employees to work remotely.
In summary, it is arguable, but subject to some risk, that an employer could require its employees to disclose whether they had undergone a vaccination.
There is presently no South African legislation requiring vaccinations of any nature and it is relatively unlikely that any such legislation will pass constitutional muster were it to be enacted.
On the assumption that an employer is able to collect vaccination data from its employees or its visitors have consented to the collection of such information, the employer must ensure that such collection, storage or transfer of data is done in accordance with the Protection of Personal Information Act 4 of 2013 (POPI). As vaccination data constitutes special data in terms of POPI, the employer may not process this data without the employees’ / visitors’ consent, (consent is defined as the “voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information”) unless such processing is required by law (which in respect of visitors at least, it presently is not). There are additional exceptions contained in sections 27 and 32 of POPI but they do not find application here.
A Guidance Note was published by the Information Regulator on 3 April 2020, which requests companies to voluntarily comply with POPI when processing personal information of data subjects for the purpose of containing the spread and reducing the impact of Covid-19 and in particular, to take steps to ensure that such information cannot be used to discriminate against employees. We would recommend that employers seek to comply with POPI in order to adopt best practice and to prepare for the stage when non-compliance with POPI’s requirements will result in legal consequences.
What issues arise in introducing Hybrid working?
The position in South Africa is that all employees who are able to work from home must do so. This is in terms of the Disaster Management Act Regulations (Regulations) and the Consolidated COVID-19 Direction on health and safety in the workplace (Revised Directive). The Regulations and the Revised Directive place an obligation on employers to minimize the number of employees at the work place at any one time.
In light of the present state of disaster and health and safety concerns with employees attending the workplace, an employer may lawfully continue to require its employees to work from home without taking any further steps. Employers will be able to defend such action on the basis that they are acting in accordance with the Regulations and applicable health and safety legislation. However, should the National State of Disaster be lifted and the Regulations be amended or repealed, the position would need to be re-assessed.
In the absence of direct legislation (such as the Regulations), a requirement that employees to continue to work from home or on a hybrid basis might be seen as a material change to the employees’ conditions of employment. Specifically, this would be the case where the change is contemplated as being for a permanent or long-term duration.
In terms of the common law, any unilateral change to the terms of an employee’s contract of employment might result in a breach of contract. Thus, the employee may be able to claim specific performance or damages in either the Labour Court or the High Court, which have concurrent jurisdiction over such claims. In terms of section 77(3) of the Basic Conditions of Employment Act, 1997 (the BCEA) the Labour Court has concurrent jurisdiction over any matter concerning a contract of employment.
However, it is a requirement that, in order to constitute a breach, the change to the terms of an employment contract must be material. In certain (albeit unique) circumstances, a unilateral decision to change an employee’s workplace to include their home may also be construed as rendering an employee’s continued employment intolerable, in which case an employee may have a constructive dismissal claim. Such claims fall under section 186(2)(a) of the the Labour Relations Act 6 of 1995 (the LRA) and permit an employee to refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for conciliation and thereafter arbitration in terms of section 191 of the LRA.
It is usually standard practice for employers to reserve the right to change the location of the workplace, within reason, and certain employment contracts may have a clause in their contracts to this effect. In the United Kingdom these have become known as “work mobility clauses”. Although the term is not used in South African law, it is possible that the Courts might adopt similar principles, particularly the obligation to afford employees experiencing a change in workplace location a hearing, and that the employer’s action is reasonable or fair. If there is such clause, then an employer may lawfully unilaterally change the workplace and require all employees to shift to hybrid working.
However, it would be advisable to consult with employees in this regard; to provide them with an opportunity to make representations on the suggested change; and to endeavour to reach agreement. In the absence of agreement post consultations, an employer will be entitled to implement such change, provided the employment contracts provide for the same. The consultation process will also enable an employer to identify any particular employees who may need additional support and or infrastructure in order to perform their roles. This will assist the employer in preventing any claims that the shift to hybrid working has resulted in intolerable working conditions.
If an employment contract does not expressly permit a change in location, it would generally be permissible for an employer to nonetheless require their employees to shift to hybrid working, provided that the change is not sufficiently material and it does not render the employees working conditions intolerable. A change may well be material/intolerable if the employee is significantly restricted in their ability to perform their normal work functions, particularly if that impacts upon the employee’s performance or ability to receive remuneration.
A court assessing such a dispute will consider a number of factors including the employee’s seniority, the nature of the work and the reasonableness of requiring the employee to work from home. Whether the employer has provided the employee with the necessary equipment (such as a laptop and internet) may also be taken into consideration. If an employee is required to spend significantly more on a home internet package, it is more likely to be considered a material change.
In the event that an employer is required to implement a material change to the employment contract and employees refuse to consent to the shift to hybrid working, then the employer may contemplate commencing the process for dismissal of such employees based on operational requirements (the nature of the operational needs have changed). In such an instance, employers will need to follow the legal requirements associated with a dismissal based on operational requirements (which includes consultation). Legal advice should be obtained if this route is followed.
It should be noted that trade unions may refer a dispute regarding a unilateral change in the terms of employment to the CCMA (and may strike should the dispute remain unresolved following conciliation), in terms of the LRA. Section 64(4) of the LRA provides that an employer may be required to reverse any changes made in this regard (or postpone implementation) until the conciliation has been finalised. Such recourse would not generally be available to non-unionised employees.
Employers are not necessarily required to provide any additional remuneration in order for employees to purchase office equipment at home, although an employer may decide to do so based on commercial efficiency and employees’ well-being. However, in the absence of a right to make a shift to hybrid working and without agreement, such provision may influence whether such change is interpreted as a material change of employment terms and whether employees working conditions have been rendered intolerable.
Employers have an obligation to provide and maintain, as far as reasonably possible, a safe working environment in terms of the Occupational Health and Safety Act of 85 of 1993 (OHSA). The workplace in OHSA is broadly defined as “any premises or place where a person performs work in the course of his employment”, which will include employees’ homes.
Employers are not required to maintain strict control over the health and safety standards in an employee’s home, any attempt to do so would infringe on employees’ rights to privacy. However, there is an obligation on employers to take reasonable steps to ensure that any equipment that the company provides to employees for use in their home must be safe and free from hazards.
Whilst there is no express legal requirement in this regard, employers would be well advised to implement systems and procedures whereby employees, who have difficulty working from home, are provided with the necessary support and assistance. This might range from providing employees with the necessary IT infrastructure, to ensuring that there are adequate wellness systems in place to guard against the possible psychological effects of working from a home environment. Where employees raise difficulties in working from home following a shift to hybrid working, these grievances should be dealt with in a manner that is consistent and fair.