Navigating the workplace in a national state of disaster

Going to work does not constitute a "gathering" and work from home is a privilege that employers can grant at their own discretion and withdraw at any time, says law firm Cliffe Dekker Hofmeyr.

As the number of confirmed coronavirus (Covid-19) cases surged to 61 on Sunday, President Cyril Ramaphosa declared a national state of disaster to try to contain the coronavirus. Among the measures announced by the president is the prohibition of gatherings of more than 100 people.

Large companies

As many corporations house more than 100 people in one building at a time, Aadil Patel, the national head of the employment practice at Cliffe Dekker Hofmeyr, says they will continue with work as normal, obviously taking proactive steps to increase hygiene in the workplace, but they do not have to approve or foot the bill for people to work from home.

"My view is that coming to work is not an event as such. What can be regarded as an event would be hosting seminars, going to mass prayers, going to shows. Going to gym would not be regarded an holding an event either, although it has its own problems," said Patel.

"Otherwise companies will come to a standstill."

Impact on strikes

He said there is no clarity in South Africa on what entails a gathering in strict legal terms, because parts of the Gatherings Act promulgated under Apartheid were declared unconstitutional last year, when Julius Malema brought the case to the Constitutional Court. But there is another piece of legislation, called the Emergency Care and Mass Gathering Events Regulation, which came into effect in 2017. This regulation, said Patel, comes close interpreting the gathering Ramaphosa referred to, and addresses the issue of a mass gathering - but defines it as an event held for a specific purpose.

He said companies can, however, be in contravention of the gatherings prohibition if they hold large meetings, events or address more than 100 staff at a time. As far as picketing and protests are concerned, Patel said the CCMA will now have to include a limit to the number of workers who can take part in a strike, over and above the general picketing rules it usually sets out.

Working from home

As the president also announced the closure of schools from 18 March, Patel said people who have no choice but to stay at home will have to apply for annual leave, failing which they’d have to take unpaid leave. If the employer approves working from home, employees will need to be available throughout working hours, even in the event of load shedding, and not socialise during those hours.

"Working from home is not a right that you have. It’s something you have to ask permission for. The economy must still move. Labour rights and regulations are still in existence. There must be a balance. We must all be socially responsible citizens, but we still have to keep the economy going," he added.

As for employees who’ve had contact with people who have tested positively for Covid-19, Patel said: "If you are sick and diagnosed, you will apply for sick leave. If you are not sick but want to self-quarantine, depending on your employers’ policies, they may say you must take annual leave," said Patel.

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