South African companies can test employees for the Covid-19 coronavirus – here’s what you need to know

The Covid-19 coronavirus has landed in South Africa, raising concerns over public health and safety in the country, questions about what happens next?

While only once case has been confirmed thus far, president Cyril Ramaphosa and minister of health, Dr Zweli Mkhize have called for calm, assuring that the country’s healthcare facilities are ready to take on the virus.

However, they warned that hospitals will be put to the test – not downplaying the severity of the issue. They have called for the public at large to be on alert, and practice good hygiene to aid in containing the spread of the virus, and to protect themselves in process.

Workplaces in South Africa are also not immune to these concerns, said Johan Botes and Kirsty Gibson of law firm Baker Mckenzie.

“Employers have begun implementing strategies to protect their workforces, taking into account their obligation to provide a safe working environment for all employees, as well as their duty to protect an individual employee’s right to fair labour practice and equal treatment.

“Employers should ensure they remain on the right side of the law and that their duty of care extends towards all employees,” Baker Mckenzie said.

Below firm outlined some of the key considerations when dealing with the coronavirus.


Medical testing for employees

In South Africa, the Employment Equity Act prohibits medical testing as a rule, but creates certain exceptions where testing is permissible.

Medical testing in light of medical facts, such as an outbreak of the coronavirus, would be one of these cases, Baker Mckenzie said.

“This means employers could justifiably implement the medical testing of employees during an epidemic.

“By implementing non-evasive medical testing, an employer may reduce the risk to the individual employee and all other employees in the workplace.”


Provide a safe working environment

Employers are under obligation to provide a safe workplace for all employees and contractors, said Baker Mckenzie.

It added that excluding staff from the workplace is a drastic remedy that could be viewed as akin to a suspension from duty, especially if it is done without proper consideration.

“However, in appropriate circumstances, it could be a very useful risk management tool,” it said.

“Where there is reason to believe that an employee is at risk (such as having travelled to an infected region during the period of infection) it could be wholly appropriate to instruct the employee to work from home until further clarity is gained.”

However, Baker Mckenzie said that employers should avoid blanket decisions and consider the merits of each case.

“For example, two employees may have travelled to a high-risk region, but one may have been quarantined and cleared while the other may have not.

“Applying a generic rule in this instance might not be fair. Employers should also consider how working from home will impact on remuneration and benefits (for example, sales staff who need to be at workplace to earn commission),” it said.

Baker Mckenzie said that the employer should take into consideration the effect on affected employees and implement ways to reduce any negative consequences, where possible.

“Paying staff required to work from home a temporary allowance may not only limit the risk of claims of unfair conduct relating to the provision of benefits but may go a long way towards ensuring understanding and cooperation.”


Understand the risk of exposure

To determine if an employee’s health is at risk, employers may question employees who they have reason to believe may be at risk (for example through suspected contact with someone who has travelled to the affected region).

These questions may include whether the employee or any of their family members have travelled to a country or region with confirmed cases of the virus.

However, employers should determine the best route forward on a case-by-case basis, Baker Mckenzie said.

“After the employer has reviewed all of the information with regards to the employee, they should decide whether it is in the best interest of the employee (and all other employees) to work from home.

“In appropriate circumstances, an employer may even demand that employees produce a medical certificate confirming they are cleared to work before allowing them to return to the workplace.”


Travel

Cost constraints in recent years have seen many multinational organisations reducing employee travel and replacing it with videoconferencing or other means.

“We are already seeing organisations instructing staff to cancel or postpone non-critical travel as the world tries to get a handle on the outbreak,” Baker Mckenzie said.

“Sending an employee to an at-risk area could result in an employment claim should things go wrong. Careful consideration of travel plans, insurance cover and alternatives available is the prudent thing to do.”


Plan, but don’t panic

Baker Mckenzie said it is uncertain when the virus will be contained and normality restored.

“Employers should therefore ensure that they are aware of their obligations to provide a safe working environment and the steps that they will take should the virus arrive on South Africa’s doorstep.

“It is also important to consider individual employee rights and to guard against panic. A crisis can bring out shameful aspects of crowd behaviour, including xenophobia and other forms of discrimination.”

Baker McKenzie has created a checklist for companies to use as a preparedness protocol. You can access the checklist here.


Read: South African companies now have to complete this mandatory checklist – but there are problems

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South African companies can test employees for the Covid-19 coronavirus – here’s what you need to know