The coronavirus outbreak has sent shudders around the world. Markets have taken a tumble as investors fear the impact on businesses and the global economy, and travellers are cancelling flights to affected regions as concerns spread about the risk of infection.
Workplaces are not immune to these concerns. Employers have begun implementing strategies to protect their workforces, taking into account their obligation to provide a safe working environment for all employees, as well as their duty to protect an individual employee’s right to fair labour practice and equal treatment. Employers should ensure they remain on the right side of the law and that their duty of care extends towards all employees.
Provide a safe working environment
Employers are under obligation to provide a safe workplace for all employees and contractors. Excluding staff from the workplace is a drastic remedy that could be viewed as akin to a suspension from duty, especially if it is done without proper consideration. However, in appropriate circumstances it could be a very useful risk management tool. Where there is reason to believe that an employee is at risk (such as having travelled to an infected region during the period of infection) it could be wholly appropriate to instruct the employee to work from home until further clarity is gained. However, employers should avoid blanket decisions and consider the merits of each case.
For example, two employees may have travelled to a high-risk region, but one may have been quarantined and cleared while the other may have not. Applying a generic rule in this instance might not be fair. Employers should also consider how working from home will impact on remuneration and benefits (for example, sales staff who need to be at workplace to earn commission). The employer should take into consideration the effect on affected employees and implement ways to reduce any negative consequences, where possible. Paying staff required to work from home a temporary allowance may not only limit the risk of claims of unfair conduct relating to the provision of benefits, but may go a long way towards ensuring understanding and cooperation.
Medical testing for employees
In South Africa, the Employment Equity Act prohibits medical testing as a rule, but creates certain exceptions where testing is permissible. Medical testing in light of medical facts, such as an outbreak of the coronavirus, would be one of these cases. This means employers could justifiably implement the medical testing of employees during an epidemic. By implementing non-evasive medical testing, an employer may reduce the risk to the individual employee and all other employees in the workplace.
Understand the risk of exposure
In order to determine if an employee's health is at risk, employers may question employees who they have reason to believe may be at risk (for example through suspected contact with someone who has travelled to the affected region). These questions may include whether the employee or any of their family members have travelled to a country or region with confirmed cases of the virus. However, employers should determine the best route forward on a case-by-case basis.
After the employer has reviewed all of the information with regards to the employee, they should decide whether it is in the best interest of the employee (and all other employees) to work from home. In appropriate circumstances an employer may even demand that employees produce a medical certificate confirming they are cleared to work before allowing them to return to the workplace.
Cost constraints in recent years have seen many multinational organisations reducing employee travel and replacing it with videoconferencing or other means. We are already seeing organisations instructing staff to cancel or postpone non-critical travel as the world tries to get a handle on the outbreak. Sending an employee to an at-risk area could result in an employment claim should things go wrong. Careful consideration of travel plans, insurance cover and alternatives available is the prudent thing to do.
Plan, but don’t panic
It is uncertain when the virus will be contained and normality restored. Employers should therefore ensure that they are aware of their obligations to provide a safe working environment and the steps that they will take should the virus arrive on South Africa's doorstep. It is also important to consider individual employee rights and to guard against panic. A crisis can bring out shameful aspects of crowd behaviour, including xenophobia and other forms of discrimination. Employers should balance the duty of care owed to all its staff against the rights and obligations of individual employees. Considerate handling of a global crisis like this could reinforce an organisation’s values and boost a healthy employee relations climate.
Baker McKenzie has created a checklist for companies to use as a preparedness protocol. Access the checklist here.
By Johan Botes, Partner and Head of the Employment & Compensation Practice, and Kirsty Gibson, Candidate Attorney, Johannesburg