So, we all have a colleague who’s living their best lives despite the covid-19 restrictions and repeated calls to be more cautious amid the second wave of infections. You know, that one colleague who’s clearly not masking up and social distancing when they’re out partying ’cause #KeDezembaBoss.
A leading attorney tells Food For Mzansi that employers actually have a right to prohibit those employees from coming into the workplace if there is circumstantial evidence that they put themselves at risk of covid-19. And yes, that includes all those Instagram soft life pics…
The department of employment and labour has already reported a growing number of businesses who are getting into hot water for not taking the necessary steps to minimise covid-19 risks and exposure in the workplace. But what are the repercussions for employees who put themselves and colleagues at risk?
Sikhona Funani, a director at Ningiza Horner Attorneys, says employees shouldn’t be surprised if they’re barred from work if they’re a covid-19 risk.
He says, “If there is evidence, then it is necessary for the employer to take action in terms of barring their employee and it would actually be in a form of an instruction.
“To say ‘based on this evidence’ or ‘based on these circumstances of you having exposed yourself’ there is a greater risk on the rest of the staff members (because of your risky covid-19 behaviour.)”
Funani adds that an employer has obligations towards their staff, including protecting the work environment and keeping it safe for those employees who are reporting for duty.
However, he believes that the repercussions for risky covid-19 behaviour in your personal time would not necessarily lead to you losing your job or facing a disciplinary enquiry.
“I don’t think it would be to the extent that they (an employer) would take them to a disciplinary enquiry. It would basically be a precautionary measure. The employer would give that employee an instruction to say that based on the fact that you had a potential risk of exposure you should rather, at least, stay at home or even undergo a (coronavirus) test.”
Funani reveals that even under those circumstances the employer also has to be upfront about who will pay for the test.
“If an employer wants to be reasonable, they will have to assist employees by referring them to a laboratory.
“If that means that we must pay for it and then deduct it from your salary, there must be an arrangement. It must be something that they both engage on because at the end of the day it’s all about ensuring that the employment environment is safe.”
While companies are required to ensure strict adherence to covid-19 regulations, many are still not taking precautions seriously enough or are sidestepping them entirely.
According to the department of employment and labour, inspectors responding largely to whistle-blower complaints, found that compliance with covid-19 prevention requirements was only 47% in the public sector and 57% in the private sector.
As of mid-July, the department had issued 2 500 notices and almost 400 prohibition notices. In addition, a number of employees and unions are accusing certain organisations of underplaying the covid-19 issue and their concerns.
Implications for non-complying businesses
So, what are the repercussions businesses could face for failing to comply?
“Those who don’t adhere to their legal duty to protect their employees and business stakeholders may face consequences including fines, legal action that could lead to imprisonment, and shutdown orders, depending on the nature and severity of the transgression,” says Greg Brown, divisional director: legal information and compliance at LexisNexis South Africa.
“Workplaces already found to be in breach of covid-19 regulations and legislation as stipulated by the department of employment and labour have been receiving correction notices, compliance orders and even prohibition orders,” he cautions.
Examples include a public entity accused by the Communication Workers Union (CWU) of breaching covid-19 health and safety regulations by failing to screen workers and deep clean its workplaces after an employee at a regional office tested positive for covid-19.
There have been numerous allegations of private sector breaches, too. In June, about 86 employees of a packaging company in Germiston in Gauteng refused to work because a number of their colleagues had tested positive for covid-19 and they had concerns that the workplace was not cleaned.