Employees in private residences can return to work from 1 June under South Africa’s new level 3 lockdown, but the country’s new regulations are not specific on the rules surrounding domestic workers and gardners.
Rosalind Davey, a partner in Bowmans’ Employment & Benefits Practice, said that the level 3 guidelines for businesses should be followed, with a focus on creating a safe working environment for employees.
Davy noted that a number of businesses require a declaration from their employees, which extends to domestic workers. This declaration includes:
- Confirmation that the employee has not been directly exposed to Covid-19;
- The employee has not been in contact with anyone that has had Covid-19;
- The employee is not experiencing any Covid-19 symptoms, including a high temperature.
Because of the nature of the home environment, Davey said that employers also have a duty to inform their domestic workers if they have had any contact with the coronavirus.
This extends to self-isolation and ensuring you don’t infect your domestic worker if you have contracted Covid-19, she said.
Masks and social distancing
While the regulations are not specific on this issue, Davey said that domestic workers will likely not need to wear masks where an employer has left the house for work and there is no one in the home.
However, she said that this issue is less clear where employers are still working from home during the level 3 lockdown, and she recommends that everyone in the home wears a mask if this the case.
She added that employers may need to practice social distancing by moving around the home as necessary if they are still working from home.
Other steps which an employer should take include:
- Providing workers with masks and gloves;
- Ensuring that hand sanitiser is available throughout the home and that correct hygiene protocols are followed;
- The introduction of staggered work times to ensure that workers are travelling outside of peak hours. This includes allowing workers to arrive later and leave earlier;
- Taking all steps to ensure a safe working environment.
While the regulations are not clear on travel permits for domestic workers, Davey said that the employers can use the prescribed permit to indicate that:
- The employee works for you in your private residence – including the residence’s address.
- You are their employer – including your contact information.
Co-morbidities and liability
Davey said that if a domestic worker has a co-morbidity such as HIV or TB they should make a declaration indicating that they are at risk to their employer.
However, she noted that it is not necessary to state the exact co-morbidities in this declaration – only that they are at risk. Davey said that additional precautions should also be followed for domestic workers over 60.
While employers have a duty to ensure that they create a safe workplace, Davey noted that domestic workers cannot refuse to work over fears that they may contract the coronavirus.
“If there is a legitimate concern around safety – such as an employer not following the above safety guidelines – then they would need to outline this and there may be a justification process.
“However if an employee simply refuses to come to work, then the ‘no work, no pay’ principle will apply and the employee may even be subject to a disciplinary process,” she said.
On the issue of employers being held liable for a domestic worker contracting Covid-19 in their homes, Davey said it would be incredibly difficult to prove that the disease was contracted in a specific household.
“One would hope that an employer takes all the steps possible to support a domestic who contracts Covid-19, including assistance with medical bills.
“However, if an employer is held liable for a domestic worker contracting the coronavirus it could open up a whole can of worms and people will simply tell their employees not to come to work over fears of the liability.”