In the latest Government Gazette No. 43400, (Consolidated Covid-19 Direction on Health and Safety in the Workplace Issued by the minister in terms of Regulation 4(10) of the National Disaster Regulations published on 4 June 2020;
It was clearly stated that the OHSA (Occupational Health and Safety Act), requires the employer to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to eliminate or mitigate the hazard or potential hazard.
Self-quarantine is a preventative measure to avoid the spread and potential exposure to COVID-19.
Clause 29 of the Directive speaks about where one worker has been exposed to another worker who has been diagnosed with Covid-19.
The employer must assess that worker’s exposure following the Department of Health’s Guidelines to ascertain whether the exposure carries a high or low risk of transmission between the workers. It is not to say, that if a person has been in contact with a person who tested positive the employer must send the employee home to self-isolate. If there was a low risk of exposure, precautionary steps must be taken and the employee’s symptoms are monitored closely for 14 days, while still reporting for duty.
If the employee was sent home by the employer due to his/her high risk of exposure. Clause 31 of the Consolidated COVID-19 Direction on Health and Safety in the workplace makes mention of the word “exposure”. It stipulates that the workers must remain in quarantine for 14 days and the employer of that worker must place the worker on sick leave following clause 27.3 for that period.
Clause 31 and 27(3) does not request showing symptoms or being tested positive as a further/additional requirement to qualify for sick leave in regards to section 22 of the BCEA, it only refers to being “exposed”.
Therefore, the employee will be entitled to paid sick leave. If the employees’ sick leave entitlement under the section is exhausted, make an application for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme under regulation 10(8) of the regulations promulgated in terms of section 27(2) of the Disaster Management Act.
Clause 48 of the Directive states that 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.
An employee who has refused to perform work in terms of clause 48 must as soon as is reasonably practicable notify the employer either personally or through a health and safety representative of the refusal and the reason for the refusal. Every employer must, after consultation with the compliance officer and health and safety committee, endeavour to resolve any issue that may arise from the exercise of the rights in terms of clause 48.
However, if we take the meaning of clause 48 into regards, the employer can still investigate whether the employees’ exposure was one of low or high risk as he still has a duty towards his other employees.
Strictly speaking, the employee is not sick herself and does not face an imminent and serious risk of being exposed to COVID-19 by returning to work. Furthermore, it was not the employer who decided to send the employee home, therefore the period in self-isolation will not be viewed as sick leave as per section 22 of the BCEA. The principle of no work, no pay will apply.
It also remains the employer’s responsibility to refer employees who present COVID-19-related symptoms or advised the employer of these symptoms for a medical examination or testing. Normally testing is not done routinely unless testing is indicated by a health professional. The employer is therefore also entitled to refer the employee for testing.
Should the employer believe that the exposure was of low risk, the employee can be instructed to return to work, taking into consideration the additional precautionary measures contemplated in clause 30. If the employee refuses to return to work the principle of no work, no pay will apply.
We recommend that the employer instruct the employee to seek assistance from a medical professional to be examined or tested, if the employee refuses to undergo examination and/or testing the principle of no work, no pay will also apply. The employee can be assisted by applying for annual leave but will not qualify for sick leave as per section 22 of the BCEA.
However, if the employer is of the opinion that there might be a high risk of exposure the above principles of clause 29-31 will apply and the employee will be placed on paid sick leave as per clause 27(3).
The COVID-19 pandemic is a first for everyone, and therefore, Management and Labour should work collectively and cooperatively to safeguard the employees and the workplace to prevent any future potential risks.
Sources:
Recognition for this article is given to the Government Notice No. 43400 published on the 04th June 2020.
About the author:
The article was written by Kopano Moloto. A multi-product Legal Advisor (BEE & Labour Law) at the Polokwane branch.