Rights of employees should be given top priority amidst COVID-19: Experts

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Next week the country goes into Level 3 of Lockdown. That will see thousands of people going back to work and legal experts say the rights of employees should be given top priority.

The outbreak of the COVID-19 pandemic and the unprecedented changes to working conditions have raised crucial questions about the duty of employers to protect the safety of employees in a corporate environment that has changed dramatically this year.

According to Michael Yeates, Director at the Cliffe Dekker Hofmeyr Employment Practice, employers have a legal obligation to protect the health of workers as they begin to return to work.

“Employers that plan to implement a return to work for their employees, they would have to conduct a risk assessment, in consultation with the health and safety committee, come up with a workplace plan … a protocol. Also, the appointment of a COVID compliance officer to ensure that these measures are implemented. This would include everything from face masks, sanitisers, and any other protocol to promote social distancing in the workplace. They would have to restrict the amount of people that they allow in the workplace.”

Yeates adds that an employer’s duty to ensure a healthy and safe working environment does not extend to an employee’s private residence when that employee is working from home during lockdown.

In relation to leaves, he says, “If employees were forced to take their paid annual leave during this period, an employer can claim from the Temporary Employment Relief Scheme (TERS) relief scheme, on the condition that it credits the employee back their annual leave that they were forced to take.”

The South African Human Rights Commission (SAHRC) has called on all businesses to uphold human rights during the COVID-19 pandemic. The commission remains concerned that certain businesses are unaware of their human rights obligations under the South African constitution.

Senior researcher for equality at the SAHRC, Dr Shanelle van der Berg, says if workers are at risk of contracting COVID-19, the right to access healthcare services and the right to human dignity will be infringed.

She explains that employers should also not neglect their most vulnerable like the blind and hearing impaired.

“When we talk to socio-economic rights, it’s access to healthcare services; right to education, right to sufficient food and water. We have seen in the media that mineworkers are testing positive for the virus. There is also a risk that mineworkers will transmit this to vulnerable communities that are affected by mining operations. Communities’ right to health is (important). If the employer does not comply with the law, workers would have a right not to report to work. Labour inspectors will also be very important as we move into Level 3 to ensure widespread compliance.”

If workers find that their employers are not compliant with COVID-19 health and safety regulations, they are urged to contact the SAHRC for recourse.

Experts say the duties and obligations placed on employers as economic activity begins to reignite is not to infringe on the rights of employees.

Some companies will be open for business and workers returning to work under level 3. This will bring about a whole new experience at the workplace in terms of organisational culture and structuring as Human Resources Expert Nomihlali Ntsunguzi explains: 

Below are measures that will be in place during Level 3: 




Author- Prabashini Moodley