Healthbridge sat down with Suzaan Stadler from FVT Consulting to get answers to the most frequent legal questions regarding COVID-19 implications and your employees. The Q&A addresses questions around employee salaries, employee leave and issues around employment in general that are not only applicable to the National lockdown period, but also to the period thereafter.
Q&A: COVID-19 and employment at your practice
What UIF benefits are available to Employees and Employers and are they applicable during or after the National lockdown?Note: With the conclusion of UIF TERS, there exists confusion relating to what type of claims employees will now be able to make from the UIF. The below is a summary of the UIF benefits available but there is still uncertainty around whether employees on short time or temporary layoffs will in fact be able to apply, application processes, and how the UIF will manage the process. We are investigating the issue and will be providing more information in due course.
May commission workers and freelancers apply for UIF benefits?No, unfortunately not, as they are not covered under the unemployment Insurance Amendment Act. In the event that an Employee earns both a basic and commission, benefits will be calculated on the basic salary only, if the Employee contributed to UIF.
How should UIF claims for Reduced Work time, Illness and Death benefits be submitted?Employers must complete the required forms. The Employer or Employee should then submit the completed forms through the following methods:
- A claim for illness can be lodged online at: www.ufiling.co.za
- Email the application to the nearest UIF processing Centre
- Application forms can be downloaded from the Department of Employment and Labour website: www.labour.gov.za
What is the application process for COVID-19 TERS?According to the current Government Directives, this benefit was only available for the periods April to 15 August. Applications for these periods are still open. Employers must visit https://uifecc.labour.gov.za/covid19/ to submit their application. Employers who need assistance can contact us here.
What is short time?When Employees work for less hours and/or less days per week/per month than they would normally do, as per their employment contract. Needless to say, they would then also be paid less proportionate to the hours/days worked. They will be able to claim from the UIF for the difference between what they used to earn and what they will earn during the period of the National Lockdown and possibly thereafter.
What is a Temporary Lay-Off?When Employees do not work at all for a certain period. This period can be days, weeks or months depending on the circumstances. In such circumstances, the Employees would not be paid, but would still be the Company's Employees.
How long may Employees be placed on a Temporary Lay-Off?Our legislation does not prescribe time periods within which Temporary Lay-Offs must be applied. The prevailing circumstances and any agreement achieved with the impacted Employees will dictate these time periods. Should the Temporary Lay-Offs become indefinite or endure for an unreasonably long period of time, the Employer may elect to (permanently) retrench Employees, after following the provisions of s189 or s189A of The LRA (as amended).
What is the process for placing Employees on short time or a Temporary Lay-Off?Employers may not unilaterally change Employees’ conditions of employment without first consulting with their Employees. However, consultations relating to Temporary Lay-Offs is much less onerous than retrenchment consultations, in light of COVID-19 and the resultant National Lockdown. Whilst the options need to be discussed with Employees, they did not have to agree to the decision to be placed on short-time or Temporary Lay-Off during the National Lockdown as the Lockdown was imposed by Government and is thus a decision beyond the Employer’s control. However, if the employer needs to place Employees on a further period of Temporary Lay-Off/short-time, Employers must consult with the affected Employees. In the event that consensus is not reached the Employers still have the right to place Employees on Temporary Lay-Off/short-time, provided the Employer bases their decision on sound business rationale. Here are the steps Employers should take in the event that Employers elect to and need to place staff on short-time/Temporary Lay-Offs after the National lockdown:
- Issue Employees with a notice of intention to introduce short-time/Temporary Lay-Off.
- During the consultation period, give Employees the opportunity to propose alternative solutions.
- Once you have consulted with your Employees, issue them with a notice of short-time/Temporary Lay-Off.
- Assist Employees with the documentation required to claim UIF benefits.
May Employers use different strategies for different groups of Employees in the same business i.t.o. who are placed on a Temporary Lay-Off/Short-time and who are afforded the opportunity to continue working?Yes, as long as Employers can clearly justify their business rationale and reasons for the different working arrangements.
May Employers revoke remote working arrangements?If Employers are able to accommodate some Employees working from home during these current times, then they should consider such. The concession can be revoked in the event that Employees abuse the conditions pertaining to working from home or where there is no longer an operational requirement to allow them the concession. We recommend that clear guidelines be set for Employees in terms of requirements, management expectations, deadlines, communication, etc. In the event that the concession is revoked due to abuse or if there is no longer an operational requirement to work from home (such as no work available), Temporary Lay-Offs or short time may be implemented.
Factors to take into account before embarking on retrenchment processesThe first priority should be to consider strategies to try and circumvent retrenchment. It is advisable to first consider which of the Employees are critical to the business, especially in the coming months. Factors to be mindful of:
- Keep in mind that for 12 months of their being made redundant, Employers are legally obliged to offer such Employees “first right of refusal” when suitable vacancies arise - provided that they meet the inherent requirements of the available positions. In other words, an Employer might have to rehire the same people they retrench now.
- Severance packages are expensive. Employers would need to pay any accrued annual leave, notice periods and severance pay (i.e. one week for every completed year of service).
- Retrenchment processes as per section 189 and section 189A of the Labour Relations Act (LRA) are onerous and there is a duty on Employers to meaningfully engage with Employees being contemplated as being made redundant before being able to procedurally and substantively fairly retrenching certain Employees.
- Normal section 189 processes do not stipulate how long the process should take, but to be procedurally fair Employers should not rush the process. It should take nothing less than 2 weeks but consultations often take longer.
- If Employers employ more than 50 staff and there is a good chance that they would need to retrench more than 10 people, such retrenchments would automatically be regulated by section 189A of the LRA. This means that Employers would be required to consult for at least 60 days before they may make Employees redundant. This also means Employers would have to cover the costs for at least 60 days unless such Employees wave their rights, which they are unlikely to do in today’s times.
- Note: Section 189 is the section in the Labour Relations Act that governs restructuring processes. There is also section 189A which deals with large scale retrenchments.
What are possible alternatives to retrenchment?South African labour legislation prioritises job retention, therefore it will follow that employers should do everything reasonably possible to avoid retrenching employees. Here are some of the alternative to consider:
- Reduced salaries: Employers could either negotiate reductions in salaries or changes in contracts for a period, to retain staff as well as decrease their staff salary bill. All employees would have to be consulted with in regards to the proposed reduced salaries.
- Applying a reduction in working hours and proportionate deduction in salary: The use of short-time involves shortening the hours in a working day or the number of working days in the week. Prior to placing short-time into effect, the employees would have to be consulted.
- Minimising overtime: By reducing the overtime payout of the business, the costs of the salary bill will be significantly decreased.
- Extending the period of unpaid leave or Temporary layoffs: The above can be used in conjunction with various other measures in order to decrease the costs of a business. However, both of these measures would have to be agreed to by both employers and employees.
Staff with comorbidities or staff over the age of 60The employer carries a responsibility to firstly, identify potential risks & hazards, and then secondly, manage these as far as reasonably practicable in the workplace. The regulations are clear that people above 60 and people with comorbidities are regarded as high-risk employees and that they are required, if possible, to not work at the workplace during this time. In the instance where there is a very good justification for these employees to be at work, the employer is responsible to ensure that special measures are in place to protect them from COVID-19 exposure. The special measures will be specific to the person, role, function and work environment and in addition to the minimum measures as per the regulations. The list of high-risk employees, if they will work from home or from the workplace, and the measures to protect them will have to be outlined in the risk assessment and plan that need to be in place before they can return to work. These documents need to be available when a Labour Inspector audits the workplace. Even though a report/recommendation from a medical practitioner is not a legal requirement, it is advised that the employer, in the process of determining if a high-risk employee can be at the workplace, can request a medical report in this regard. It is important that an employer knows who the employees are that have comorbidities which put them in a high-risk category. However, neither an employee nor a medical practitioner needs to disclose what these comorbidities are. An employer can, therefore, ask employees to complete a questionnaire listing the comorbidities and only disclose if they have one or more of the listed comorbidities. A medical practitioner only has to refer to an identified medical condition.
Can Employees claim from COIDA if they contract COVID-19 at work?COIDA is the Compensation for Occupational Injuries and Diseases Act. When an employee falls ill with the COVID-19 virus because they came to work, they may claim from the Workman’s Compensation Fund. For the first three days, if an Employee is booked off from work due to a work-related disease or injury, the Employer must pay the Employee in full. This is called COIDA/WCA leave and means that the first three days does not come out of the Employees’ sick leave entitlement. From day 4, the Employer pays 75% of the Employee’s rate of pay. If the Employee is still booked off after three months, he or she can continue claiming but then such claim will go through the Compensation Fund.
Sick leave entitlementAn employee who cannot work because they have been infected with COVID-19 or are exhibiting symptoms to the extent that they have been booked off by a doctor, will be entitled to sick leave on full pay if they submit a valid medical certificate. In the event that an employee’s sick leave entitlement is exhausted, and the Employee has been booked off by a registered Medical Practitioner for longer than 7 days, (for whatever nature of illness), he or she can claim Illness Benefits from UIF.
What if an employee has not yet tested positive for COVID-19 or is not booked off by a doctor, but is placed in quarantine?If an employee has to stay home, but has not yet tested positive and does not have symptoms, the employee will not be entitled to paid sick leave. If they are advised to/elects to be placed in self-quarantine for 14 days due to their being exposed to a person who has tested positive for COVID-19 TERS, such an employee is eligible to claim UIF illness benefits. Hence these 14 days of self-quarantine is not processed as paid sick leave benefits hence does not reduce an employee’s paid sick leave entitlement.
What are the Employer’s responsibilities in terms of employees who Return to Work?According to the Occupational Health and Safety Act, the employer is responsible to create a healthy and safe work environment for all employees. In the context of the COVID-19 pandemic, this implies that the employer is responsible, among others, to:
- Implement a policy regarding the management of COVID-19 in the workplace.
- Define and implement a written plan for a phased-in return of employees to the workplace.
- Appoint a Compliance Officer to conduct risk- and health assessments.
- Adopt responsible measures to prevent the spread of COVID-19 in the workplace.
- Implement procedures to identify and report cases in the workplace.