The government enforced 21 day lockdown raises many issues relating to employee rights, including concerns around whether leave (for workers who cannot work from home) will be paid or unpaid, whether UIF (Unemployment Insurance Fund) applies and what the rights of essential workers are.

Here are ten things to know about employment law during the COVID-19 lockdown.

  1. If employees are able to work from home, they should do so.
  2. If employees cannot work from home, employers can request that staff take their annual paid leave during this time. The Basic Conditions of Employment Act allows an employer to determine when leave can or must be taken, unless agreed otherwise in the employment contract.
  3. There is debate around whether, after an employee’s paid leave is exhausted, there is an obligation to pay the employee for the remaining days of lockdown if the employee chooses not to request unpaid leave, because under different circumstances the employee would have made themselves available for work – the common law requires employers to pay employees who tender their services but this will have to be balanced against the legal impediment or impossibility of performing work due to the lockdown. This unsettled debate will likely be determined by court action soon after the lockdown ends.
  4. Employees can apply for UIF, and employers are obligated to assist them in doing so.
  5. Employees who were under self-quarantine before the lockdown are also entitled to UIF, under the special leave provisions. However, employees who were self-quarantined for more than 14 days before the lockdown need a medical certificate to claim UIF benefits that exceeded the 14 day quarantine period before the lockdown. The lockdown period will be covered under UIF though.
  6. If a non-essential worker contracted COVID-19 as a result of work-related activities before the lockdown (such as a business trip that was in the course and scope of their employment), they can claim worker’s compensation under the Compensation for Occupational Injuries and Diseases Act (COIDA).
  7. Essential workers who contract COVID-19 during the lockdown are also entitled to compensation under COIDA.
  8. Essential workers cannot unreasonably refuse to work if they are in a position to do so. Employers can refuse to allow essential workers to work from home if there is a good reason for the refusal (such as, the work cannot be done from home).
  9. Employers designated as essential services during the period of lockdown must maintain a safe working environment and take the necessary precautions in terms of the Health and Safety Act and any other regulations issued by government during this time.
  10. Although the legal position allows for various scenarios, businesses should aim to achieve agreement with employees on workable solutions that ensure business sustainability while protecting the livelihood of their employees.

This article was written by Mohammed Chavoos, Director, Norton Rose Fulbright South Africa Inc

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