COVID: Employee rights in a pandemic

A pandemic signals uncertainty all round - from your personal life, to your physical and financial health, and even your career. For many businesses this uncertainty can cause them to have to make difficult decisions that may gravely affect their employees.

Justmoney explores business responsibility during a pandemic, and further what the rights are of the employee specific to such a time.

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According to Momentum Investments, regardless of the pandemic status, companies are responsible for upholding the contractual agreements made to their employees.

This means that should the worst take place, such as companies retrenching or cutting on hours, or even having to close down for example, this should all be done within the bounds of the employees’ contract as guided by the Basic Conditions of Employment Act (BCEA).

Typically, during a pandemic there are certain emergency protocols and regulations that will be enforced, thus transforming and impacting the workplace. Employers in turn have to adapt to this by ensuring workplace health and sanitation is adhered to even if it means having to revise certain policies, says Sanlam Reality.

Employee rights

Let’s unpack to what extent the current South African employment legislation protects the rights of workers during a pandemic in the following key areas:

1. Sick leave

Sick leave as per the BCEA is based on a 36 month-cycle. The act further states that permanent employees can take the number of days they would work in a six-week period. But during the first six months of employment, they’re only eligible to one day for every 26 days worked.

Remember though that you still have a responsibility to produce a medical certificate should you be ill for more than two consecutive days. This is typically the case as well when employees are ill on a Monday or Friday too.

What’s important to note is that if you’re not sick but just wanting to quarantine yourself if need be as a means of a preventative measure this is not covered or stipulated by law.

While different companies offer different annual leave structures sick leave guidelines are typically standardised. This means that if you don’t have a medical certificate your company can categorise these days as annual or unpaid leave.

Then for contract or temporary staff, the law only protects you if you work for more than 24 hours monthly. Anyone who works less than 24 hours per month for an employer is not entitled to sick leave.

2. Working remotely

As regulated by the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (COIDA) employers have a responsibility to ensure that the workplace is safe.

Failure to do so or to provide such an environment gives you as the employee reasonable grounds to negotiate for working remotely or from home.

But note that this isn’t legally stipulated or catered for. This means that such a decision needs to be agreed upon by both employer and employee.

Should the employer however insist that you need to be present at work, after having ensured that the space is safe, and you fail to do so this could still result in disciplinary action.

Conditions are also subject to the situation and it’s advisable that employer and employees remain in constant communication especially during such a volatile time.

Another important consideration is also how this may affect employee benefits if at all. Again, these decisions should be guided by the BCEA, but is still a worthwhile discussion to have with one’s employer.

3. Medical testing

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

This means employers could justifiably implement the non-evasive medical testing of employees. This may reduce the risk to both the employee, the employees, and potential clients.

While it’s important that business needs to continue generating an income especially during such a time it’s also imperative that the employees are protected and supported.

Other considerations for employers should include: catering for more flexibility for employees especially where working is concerned, providing support structures and platforms for employees, and providing spaces, specifically for those working remotely, to still be able to socially interact as a team or company as a whole.

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