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    Managing HR Through COVID-19

    A Practical Guide for Multinational Employers

    Prepared by ENSafrica

    As at March 30, 2020

     

    Overview

    This publication will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    1.   Good Practice Guidance giving high-level consideration;

    2.   An Action Point Checklist drilling down into the detail; and

    3.   Answers to Key Questions facing employers in South Africa.

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

     

    It has been prepared by ENSafrica and is published with their kind permission. With thanks to:

    ENSafrica |  Ross Alcock | ralcock@ensafrica.com | www.ensafrica.com

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1. Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2. Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3. Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4. Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5. If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6. One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
        Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2. Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
      Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at March 30, 2020

    1. What are an employer’s main legal obligations?

    An employer’s main legal obligations in the context of the COVID-19 pandemic are to:

    • Provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of employees.
    • Comply with directives and regulations promulgated by the Government of South Africa in terms of the Disaster Management Act 57 of 2002.
    • Comply with obligations under the contract of employment and any collective agreements (e.g., continuing to pay wages, ensuring the employee works within the terms of the contract of employment).

    2. Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal obligation in South Africa for an employer to have a workplace COVID-19 response plan. However, it is practically advisable for employers to prepare a plan for managing continued operations during the COVID-19 pandemic. The more detailed the plan, the better prepared an employer will be to cope with any COVID-19 outbreak. Both workplace health and safety issues, and business continuity issues should be covered.

    3. What should a workplace COVID-19 response plan cover?

    A national lockdown has been declared in terms of the Disaster Management Act 57 of 2002. All persons, who are not part of South Africa’s essential services (see: https://www.gov.za/sites/default/files/gcis_document/202003/4314825-3cogta.pdf for a list of categories of services that are essential services), are required to stay at home from midnight on March 26, 2020 to April 16, 2020. For employers who are not an essential service, it is practically advisable that a response plan caters for this disruption. Amongst other things, a response plan could include:

    • Processes for ensuring the business operations can be continued remotely;
    • Establishing communication channels for all employees working from home; and
    • Ensuring that support services, such as IT infrastructure, will be able to facilitate remote working.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4. Can I direct my employees to go home or stay at home if there is an outbreak?

    Given the national lockdown discussed above, employees that are not part of South Africa’s essential services will be required to stay at home for the period of 21 days between March 26, 2020 and April 16, 2020. Notwithstanding the national lockdown, an employer would be able to direct that an employee goes home in the event of a COVID-19 outbreak. This would be in compliance with the employer’s duty to provide and maintain a safe and healthy working environment. The employer would be obliged to adhere to its ordinary contractual obligations and would need to continue remunerating the employee in those circumstances.

    5. Can I direct an employee to see a doctor?

    Section 7 of the Employment Equity Act 55 of 1998 (“EEA”) provides that medical testing is prohibited unless it is justifiable in terms of the medical facts, employment conditions, social policy or inherent requirements of the job. Given the highly contagious nature of COVID-19 and the employer’s duty to provide and maintain a safe and healthy work environment, it would be justifiable for an employer to require an employee to see a doctor. This is especially in light of the social policy obligation to prevent the spread of COVID-19 though human interaction, including interaction that occurs at the workplace.

    6. Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Yes. The contract of employment will continue during a COVID-19 outbreak unless the employment has terminated for whatever reason. This does not preclude the employer from reaching an agreement with employees (or their representative trade unions) regarding any measure to offset the financial burden to the employer. One such measure may be an agreed temporary lay-off.

    However, for the duration of the national lockdown referred to above, citizens are not permitted to leave their residences unless they are involved in various specified essential services. This may make the performance of an employee’s obligations in terms of the contract of employment impossible because the employee would not be able to tender their services if that employee needs to be physically at the workplace in order to perform the services. The employer may then rely on the principle of reciprocity (the exceptio non adimpleti contractus) to avoid the obligation to remunerate employees if employees are unable to tender their services. If employees are, however, able to conduct their duties remotely, then the employees should be paid their normal remuneration.

    Employers that face financial distress may apply to receive financial relief in terms of the Temporary Employer / Employee Relief Scheme (“TERS”), a scheme created to assist employers with managing the wage bill during the COVID-19 pandemic. In terms of the Directive published by the Minister for Employment and Labor, to qualify for the temporary financial relief scheme, an employer must:

    • be registered with the Unemployment Insurance Fund;
    • comply with the application procedure for the financial relief scheme as specified in the Directive; and
    • as a direct result of the Covid-19 pandemic close its operations for three months or less and suffer financial distress.

    7. Can I quarantine certain staff to certain parts of an office or send them to a different office?

    Yes, however, in terms of section 6 of the EEA, an employer is prohibited from unfairly discriminating against an employee, in any employment policy or practice, on one or more grounds, including disability or any arbitrary grounds. There is a risk that if the employer arbitrarily quarantines certain staff without any rational basis, this may be viewed as a discriminatory work practice. Accordingly, the employer must ensure that it applies quarantine measures rationally. For example, an employer may require a team or division to work from a certain office to reduce the likelihood of spread to all employees. It would not be unfair discrimination to require an employee who is COVID-19 positive, or who has been exposed to someone who is COVID-19 positive, to quarantine because of the importance of reducing the possibility of spreading the disease.

    8. Can I direct my employees to report suspected cases of COVID-19?

    Yes. This would be a reasonable and lawful instruction in the circumstances of the COVID-19 pandemic, particularly in view of section 14 of the Occupational Health and Safety Act 85 of 1993 (“OHSA”), which requires that every employee at work shall:

    • take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions;
    • as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;
    • carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety; and
    • if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable, report such situation to his employer or to the health and safety representative for his workplace or section thereof, as the case may be, who shall report it to the employer.

    9. Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Strictly speaking, an employee is obliged, in terms of the contract of employment, to tender their services to their employer at the agreed place and during the agreed working hours. A refusal to do so would be a breach of contract and the employer would be entitled to take disciplinary measures against the employee and/or to discontinue its reciprocal obligations to remunerate the employee. However, in the circumstances of the national shutdown, all non-essential services employees are required to stay at home for a period of 21 days, which means that employees are lawfully required to stay at home.

    10. Can I screen employees and customers before allowing them to enter the workplace?

    Yes. As discussed above, section 7 of the EEA prohibits medical testing unless it is justifiable in terms of the medical facts, employment conditions, social policy or inherent requirements of the job. The medical facts pertaining to COVID-19 would justify the screening (such as infrared temperature tests) of employees and customers before they enter the workplace to prevent the spread of the disease within the workplace.

    CONTACT: ENSafrica  |  Ross Alcock  |  ralcock@ensafrica.com  |  https://www.ensafrica.com/

     

     

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    Appendix: Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • Adherence with any governmental directives and regulations pertaining to COVID-19 (for example, the responsibilities of employers and employees in circumstances of a national shutdown).
    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies, such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, subject to local legal obligations and requirements, and depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by ENSafrica provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.