The rapid rise in Covid-19 infection rates and a shift to adjusted alert level 4 in South Africa have heightened many employees’ fears and reluctance about physical work interactions, returning to and/or continuing to work in traditional workplaces, say legal experts at law firm ENSAfrica.
The firm said that employers are expected to manage these concerns properly and be informed of their rights and obligations regarding remote working arrangements.
“Despite amended regulations, directives and copious commentaries doing the rounds, there appears to be immense confusion about which employees can (and should) work remotely and under what circumstances during adjusted alert level 4.”
Ultimately, context is key and employers are encouraged to consult with their preferred legal advisor for advice on specific questions and concerns regarding remote working, ENSAfrica said.
The firm added that each case should ultimately be considered on its own merits.
To assist with this, ENSAfrica detailed what the current regulations and safety directives say around working from home under level 4 lockdown.
Can employers force their employees to work at the workplace?
As was the case previously, the adjusted level 4 regulations state that “all persons who are able to work from home must do so.”
But who gets to decide whether an employee can work from home? Intuitively, this will be the employer’s call to make taking into account its operational requirements, ENSAfrica said.
“The Occupational Health and Safety Act (OHSA), read with its regulations, requires an employer to provide and maintain, as far as is reasonably practical, 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 a hazard or potential hazard in the workplace.
“Such a hazard would include Covid-19,” ENSAfrica said.
“The OHSA further requires employers to ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities – such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employer – are not exposed to hazards to their health or safety.”
In addition, and under the current adjusted alert level 4 regulations, the firm said that employers continue to have several obligations relating to:
- The accommodation of vulnerable workers;
- The adoption of social distancing and sanitising measures; and
- The screening and reporting of Covid-19 positive cases.
Insofar as social distancing is concerned, the regulations require that all employers adopt measures to promote physical distancing of employees including:
- Enabling employees to work from home or minimising the need for employees to be physically present at the workplace;
- Providing adequate space;
- Restricting face-to-face meetings; and
- Implementing special measures for vulnerable employees who are over the age of 60, or who have health issues or comorbidities.
“In addition, according to the amended consolidated occupational health and safety directive, employers must, as far as is practicable, minimise the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures,” ENSAfrica sai.
“Sector-specific health protocols may also address these matters and special measures affecting persons with more significant vulnerabilities.”
The directive also obliges employers to include in their workplace plan the list of employees permitted to return to work and those required to work from home.
When deciding on remote working arrangements, employers must also bear in mind that while the regulations permit individuals to perform any type of work outside the home and to travel to and from work for work purposes under adjusted alert level 4, this is subject to:
- Strict adherence to health protocols and social distancing measures;
- The return to work being phased-in to make the workplace Covid-19 ready;
- The return to work being done in a manner that avoids and reduces risks of infection; and
- The work not being listed under the specified exclusions.
Gatherings at a workplace for work purposes are also allowed, subject to strict adherence to all health protocols and social distancing measures.
Despite the Covid-19 third wave and rapid infection rate, at least on paper, employers’ rights and obligations regarding remote working do not appear to have changed.
However, the situation on the ground may well be very different, ENSAfrica said.
“Whilst the regulations might not have changed, the third wave has meant that the risk profile has changed significantly.
“It is therefore prudent for employers to reconsider their current Covid-19 management measures, including their policies and practices on remote working, to ensure that they adequately address the current risk of Covid-19 ushered in by the third wave.”
What if employees refuse to work at the workplace?
ENSAfrica said there has been a rise in the number of employees refusing to work from the office and/or to carry out their duties in circumstances where they feel at risk.
In this regard, employees are obliged to obey all reasonable and lawful commands of their employers, which includes complying with an instruction to return to work and/or measures introduced by their employers as required by the regulations and amended occupational health and safety directive, it said.
“That said, the directive itself provides 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.”
Whether the justification is reasonable and there is an imminent and serious risk of exposure will be determined based on each case’s facts, ENSAfrica said.
“The test is objective, ie, reasonable employee in the employee’s position, not the subjective opinion of the employee.
“However, if there is reasonable justification for the refusal, the directive provides that no employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work in these circumstances.
“Accordingly, although employees must comply with reasonable and lawful instructions from their employers, which may well include an instruction to work from or in the traditional workplace, if there are justifiable reasons to withhold services on account of the risk of exposure, employees will be entitled to do so.”
Need to reassess
Although the legal framework under level 4 has not changed materially on paper, this does not mean that employers should not be reassessing their workplace plans and policies in practice, ENSAfrica said.
“The workplace plan should be treated as a living document. Employers should be adapting it to cater to the regulations and the ever-changing risks associated with the virus.
“Ultimately, context-specific and fluid risk assessments, and fair and objective criteria must govern employers’ adaptions of their work plans and decisions regarding whether and when to allow employees to work remotely.”
Commentary by Lauren Salt (Executive) and Jessie Moore (candidate legal practitioner) at ENSAfrica.