Last week, Jacqui Reed of Herbert Smith Freehills highlighted the workplace legal contradictions that have emerged under the newest COVDI-19 regulations. This week, Michael Bagraim, labour law specialist and Shadow Minister of Labour, takes up the issue of employer liability following the 1 February amendments to Disaster Management Act regulations.
Bagraim writes:
In essence, the government is now encouraging people to attend work even if they have confirmed positive results of COVID-19 but are asymptomatic. This presents all sorts of problems, including the further spread of COVID-19 at the workplace.
Although employers have cover from the Compensation Fund for the spread of infection at work, this cover will be wholly inadequate. To a large degree, the Compensation Fund is dysfunctional, and pay-outs, if any, could take months, if not years. Employees who get infected will incur medical expenses and even possible hospitalisation.
Although hospitalisation is not probable there is no guarantee. This expense will have to be covered by the employer.
Many institutions, including health care practitioners, will not treat Compensation Fund patients. Even the production of a Compensation Fund Certificate does not guarantee treatment at the various private institutions. Thousands of medical practitioners no longer accept these patients and demand payment directly from the employer or, for that matter, from the employee.
Invariably employees don’t have the funds to cover the expenses pending the payment from the Compensation Fund (which might never happen). Therefore, it is recommended that employers rather take the conservative route in terms of Clause 14 of the Consolidated Direction on Occupational Health and Safety in certain workplaces.
This categorically states that employees can reasonably refuse to work and still demand their pay. This, in turn, means that the employer won’t have the productivity but still has the overheads. The reality is that employers should keep a rule in place demanding that any employee showing symptoms, or otherwise if positive, should isolate for seven days without exposing others at the workplace to the spread of the infection.
See more from MedicalBrief archives:
SA employers must weigh implications of conflicting regulations on COVID-19
High costs and no benefits: Why SA’s COVID-19 regulations had to change
South African government’s new pragmatism over COVID restrictions
SA business expects rise in court action on vaccine mandates in 2022