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Employment Questions Arising from the COVID-19 Lockdown

For those with employment questions arising from the lockdown, please find below summary points in relation to employees working and/or being paid during lock down:

  1.     If your business falls within one of the essential services designated by government, you are entitled to require your employees to work during the lockdown period. Remember that all obligations in terms of OHSA continue to apply during this period and you could face potential liability if you insist on staff working under circumstances which are not safe. If staff work during this lockdown period they are entitled to be paid.
  2.     Government has designated a number of services as essential services. These include the following:

–      Medical, health (including mental health), laboratory and medical services;

–  Disaster management, fire prevention, firefighting and emergency services;

–  Financial services necessary to maintain the functioning of the banking and payments environment, including the JSE and similar exchanges, as well as insurance services.

–  Production and sales of the goods (related to food, cleaning and hygiene products, medical products, fuel and basic goods such as airtime and electricity).

–  Grocery stores, including spaza shops.

–  Electricity, water, gas and fuel production, supply and maintenance

Critical jobs for essential government services as determined by the Head of National or Provincial Departments

–  Birth and death certificates and replacement  of ID documents

–  Essential municipal services

–  Care services and social relief of distress provided to older persons,the  mentally ill, persons with disabilities, the sick and children;

–  Funeral services, including mortuaries;

–  Wildlife management, anti-poaching, animal care and vet services;

–  Newspaper, broadcasting and telecommunications infrastructure and services;

–  Production and sale of any chemicals, hygiene products, pharmaceuticals for the medical or retail sector,

–  Cleaning, sanitation, sewerage, waste and refuse services;

–  Services related to the essential functioning of courts, judicial officers, the Master of the High Court, Sheriffs, and legal practitioners required for those services

–  Essential SARS services defined by the Commissioner of SARS.

–  Police, peace officers, traffic officers, military medical personnel and soldiers, correctional services officials and traffic management services.

–  Postal services and courier services related to transport of medical products.

Private security services.

–  Air-traffic Navigation, Civil Aviation Authority, Cargo Shipping, dockyard services

–  Gold, gold refinery, coal and essential mining.

–  Accommodation used for persons rendering essential services, quarantine, isolation and the lockdown.

–  Production, manufacturing, supply, logistics, transport, delivery, critical maintenance and repair in relation to the rendering of essential services including components and equipment.

–  Transport services for persons rendering essential services and goods, and transportation of patients.

–  Services rendered by the Executive Committee, members of Parliament, Members of the Provincial Legislature, Members of Local Councils, the Judiciary, traditional leaders, and National Office Bearers of Political Parties represented in Parliament.

–  Commissioners of the South African Human Rights Commission, Gender Commission, and the Commission for the Promotion and Protections of the Rights of Cultural, Religious, and Linguistic Communities, and the Public Protector and Deputy Public Protector.

–  Transport and logistics in respect of essential goods to neighbouring countries,  as set out in A above.

Employers operating in these industries will be entitled to require their employees to work during the lockdown period.

3. If your business does not fall within a designated essential service you may not require your employees to leave their homes to attend work. In these circumstances the principle of no work no pay will apply. Where employees are capable of working remotely from home the employer must permit them to do so and must pay them for this period.  Employers are entitled to set certain conditions to ensure adequate work turnover and performance standards but must be mindful that it may take some time for employees to become accustomed to working from home. Communication and flexibility will be key during this period of time. For example, if an employee is only capable of performing 70% of their job function remotely it is suggested that the parties agree to temporarily reduce their salary to accommodate this.

4. Where employees are unable to work from home, employers are encouraged by Government to assist their staff where possible. Examples of this include the following –

(1) moving a year end shut down period to now coincide with the lockdown and working during the traditional end of year shut down;

(2) agreeing to pay salaries or partial salaries for a period of time. In this regard salary reductions could be staggered over the period of the lockdown should it extend beyond twenty-one days.

Again, communication and consultation will be key to achieving this.

5. Where employers are unable to pay employees that are not working during this lockdown or are unable to pay working employees their full salary, funding will be made available in the form of a “National Disaster Benefit” from UIF. The benefit will be at a flat rate equal to the minimum wage (R3500.00) per employee for the duration of the lockdown or for a maximum period of three months, whichever period is the shortest. Where employees are receiving some form of payment from the employer, their benefit will be the difference between that which they are entitled to receive from UIF and that which  they are receiving from their employer. National Disaster Benefit funds will be paid to the employer who in turn is expected to pay employees. Employees may not claim for any normal UIF benefits while receiving National Disaster Benefits. Where the lockdown is longer than three months or where an employee is retrenched as a consequence of the lockdown, normal UIF benefits will apply. Please take note that this assistance is only available to employers who are compliant with their UIF obligations.

6. Temporary Employer / Employee Relief Scheme (TERS)

6.1  The TERS process came into effect on 11 December 2019. The TERS was originally an initiative to assist in the alleviation of layoffs and/or retrenchments and in essence provides a subsidy to distressed employers to retain employees while upskilling or training them to avoid retrenchment.

6.2  Government is currently exploring ways in which to utilise funding from this scheme to assist employers and employees during the lockdown period.

6.3  Funding for this initiative is also derived from UIF and employers must be UIF compliant in order to qualify.

6.4  In addition to the above, the applicant must be able to demonstrate that it is in distress and it will or has embarked upon a turn-around or sustainability program, which will result in job preservation.

6.5  Payment under the TERS – a successful applicant would not be required to pay employees during the agreed period and instead TERS would pay each participating employee an allowance not exceeding R 17 242 per month.

As stated above, government is currently exploring ways of accessing this funding and we are currently unable to advise whether it will be on terms and conditions previously permitted as set out above. This will, however, be communicated to you once we have confirmed information issued by the government.

7. Illness Benefits

7.1  Normal sick leave provisions apply during this lockdown period where individuals have paid sick leave due to them.

7.2  Individuals who have exhausted their sick leave and are quarantined for fourteen days may apply to UIF for a newly permitted Illness Benefit. Where the employee is off for only fourteen days, a confirmation letter from both the employee and employer is sufficient proof that the parties have agreed to this special leave. Where an employee is quarantined for more than fourteen days, a medical certificate will be required for continued payment from the UIF.

8. Workers Compensation

8.1  On 20 March 2020 the Compensation for Occupational Injuries and Diseases Act (“COIDA”) was amended to make provision for Occupationally Acquired COVID 19 resulting from “single or multiple exposures to confirmed case(s) of COVID 19 in the workplace or after an official trip to high risk countries or areas in a previously COVID-19-free individual.”

8.2  In confirmed cases, where the compensation fund has accepted liability upon application by the employer and employee, temporary total disablement benefits shall be paid for a period of thirty days calculated from the date of diagnosis. Under these circumstances medical aid will also be provided for a period of no more than thirty days from the date of diagnosis.

8.3  In cases where a COVID 19 infection results in permanent disability, application will need to be made in the normal course for permanent disability benefits.

8.4  Where COVID 19 results in death, the Compensation Fund will pay for reasonable burial expenses, widow’s and dependent’s pensions where applicable.

It is important to distinguish between occupationally acquired COVID 19 and non-occupationally acquired COVID. Where it is occupationally acquired one must apply for COIDA benefits. Where it is non-occupationally acquired one must apply for UIF Illness Benefits.

Justine Del Monte

Justine has a BLC and LLB (cum laude) from the University of Pretoria and was admitted as an attorney in 2002. She spent 6 years at Irish Ashman Attorneys where she rose to the level of partner before leaving to focus on her employment law practice. She joined Caveat in 2015 specialising in employment law.

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