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In an effort to help parents struggling with the coronavirus pandemic, Parent24 is speaking to legal professionals and experts to outline the law on their rights, and provide some insight when it becomes hard to know what to do in this unique situation.
This reader sent us a valid question about their rights with regards to potentially being exposed to the virus while at work. We spoke to a lawyer who provided helpful insights.
"I have read your article about employee rights, and I have a question for you.
I work for an emergency service, but I am based at the head office, in credit control.
There are weekly meetings here, and I am exposed to patients daily. The company is not affording us the opportunity to work from home.
What do we do in this case?
They are telling us to relax as it is not as bad as the public is making it out to be.
There are numerous staff travelling via public transport and we are exposed.
I have 3 small kids, and with schools being closed they stay by my granny who is almost 70.
What are my rights in this regard?
The managers are saying it is not considered an injury on duty if we contract the virus, as we first need to prove if we really got it at work, which I feel is unacceptable for the industry we are in."
Terms and conditions of employment
Kyle Ball, a legal professional at Di Siena Attorneys, provided some insight into this tricky topic for us. See his response below:
While the outbreak of Covid-19, and the declaration of a national state of disaster, may have an effect on both employers and employees, it has not altered or set aside the terms and conditions of the employment relationship or South Africa’s employment law.
Most employer and employee relationships are regulated by a written employment agreement, but it is not the only source of each parties’ rights and obligations.
Health and safety
The Occupational Health and Safety Act places a statutory duty on an employer, as far as reasonably practicable, to ensure the health and safety of its employees in the working environment.
Employer’s may also have a duty to protect the health and safety of non-employees.
Employers must manage the risk of contamination and the spread of infection in the workplace by establishing and enforcing procedures to reduce the spread of infection.
While this may mean that employers allow their staff to work remotely, if possible, it does not mean that an employee has the right to work from home and/or refuse to attend work during the employees normal working hours.
Duty of care
An employer also has a common law duty of care towards its employees to ensure that the working environment is safe for its employees.
This includes taking precautionary measures, including but not limited to, following the World Health Organization’s recommendations, ensuring that offices are clean, by reducing, if possible, unnecessary contact with customers, suppliers, the public and other staff members.
Employees also have a duty to ensure that health and safety risks are reduced during this pandemic.
By way of example, if an employee is aware or suspects that he/she is infected, they should immediately inform their employer and seek medical attention.
An employer, on becoming aware that an employee is infected, must instruct that employee to vacate its premises and seek medical attention.
Infected persons that refuse to be quarantined may face criminal prosecution and imprisonment if they are found guilty.
Rights and obligations
At present, both employers and employees seem uncertain as to what their rights and obligations are under the current situation especially when it comes to rights, obligations, the performance of duties and whether employees are entitled to sick leave, paid and/or unpaid leave and claims for injury or death.
In terms of section 22 and 23 of the Basic Conditions of Employment Act (BCEA), an employer is not required to pay an employee, if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period if the employee does not produce a medical certificate stating that the employee was unable to work for the duration of the employee's absence on account of sickness or injury.
Lawful dismissal
In addition, if you do not produce a medical certificate and you unilaterally choose to stay at home, your employer could lawfully dismiss you.
In terms of the Compensation for Occupational Injuries and Diseases Act (COIDA), workers are entitled to claim compensation under specific circumstances if they are injured at work while performing duties which fall within the course and scope of their employment.
Compensation
COIDA states that "workers who are injured on duty or obtain an occupational disease can claim compensation for a temporary or permanent disability.
If workers die as a result of an injury on duty, their dependants may also be entitled to claim compensation.
Employers that register their employees are protected against civil claims in this regard".
Employees and/or their dependants seeking to claim compensation under COIDA will have difficulty in proving that they were infected at their place of employment.
However, it may be easier for an employee and/or their dependant to prove a claim under COIDA if the employer was negligent in its statutory and/or common law duty to its employees.
No valid reason to abscond from work
To avoid potential claims by employees, employers should, if possible, allow employees to work remotely. Alternatively, employers must attempt to restrict all unnecessary contact and work travel and it should enforce strict procedures to curb the spread of disease in the workplace.
If employees are allowed to work remotely, employees must remember that they could face disciplinary action and/or dismissal if they fail to perform their duties while working remotely.
Working remotely should not be taken lightly.In light of the above, employees remain obligated to attend work during their normal working hours.
Working from home may be considered by employers, but should not be implemented by employees without the employer's consent.
Even though the coronavirus has spread to South Africa, it does not constitute a valid reason to abscond from work and you may face disciplinary action and/or dismissal if you breach your employment contract.
Compiled for Parent24 by Elizabeth Mamacos
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