The rapid rise in COVID-19 infection rates and a shift to Adjusted Alert Level 4 in South Africa have heightened many employees’ fears and reluctance about physical work interactions, returning to and/or continuing to work in traditional workplaces. Employers must prepare to manage these concerns properly and be informed of their rights and obligations regarding remote working arrangements. The stakes have never been higher.  

Despite amended Regulations, Directives and copious commentaries doing the rounds, there appears to be immense confusion about which employees can (and should) work remotely and under what circumstances during Adjusted Alert Level 4. Can employers force their employees to work at the workplace? If so, which ones and when? What if employees refuse to work at the workplace? Can these employees be dismissed?

We discuss these and other pressing questions about employers’ and employees’ rights and responsibilities regarding remote working during Adjusted Alert Level 4.

Ultimately, context is key and employers are encouraged to consult with their preferred legal advisor for advice on specific questions and concerns regarding remote working. Each case should be considered on its own merits.

Can employers force their employees to work at the workplace?

As was the case previously, the Adjusted Level 4 Regulations state that “all persons who are able to work from home must do so.”

But who gets to decide whether an employee is able to work from home? Intuitively, this will be the employer’s call to make taking into account its operational requirements. However, this decision is subject to the health and safety obligations and protocols, the employees’ rights and various other legal considerations. We discuss some of the key aspects of these below.

The Occupational Health and Safety Act, 1993 (“OHSA”), read with its regulations, requires an employer to provide and maintain, as far as is reasonably practical, a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to eliminate or mitigate a hazard or potential hazard in the workplace. Such a hazard would include COVID-19.

The OHSA further requires employers to ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employer) are not exposed to hazards to their health or safety.

In addition, and under the current Adjusted Alert Level 4 Regulations, employers continue to have several obligations relating to

• the accommodation of vulnerable workers;
• the adoption of social distancing and sanitising measures; and
• the screening and reporting of COVID-19 positive cases.
  
  

Insofar as social distancing is concerned, the Regulations require that all employers adopt measures to promote physical distancing of employees including:

• enabling employees to work from home or minimising the need for employees to be physically present at the workplace;
• providing adequate space;
• restricting face-to-face meetings; and
• implementing special measures for vulnerable employees who are over the age of 60, or who have health issues or comorbidities.
  
  

In addition, according to the amended consolidated Occupational Health and Safety Directive, employers must, as far as is practicable, minimise the number of workers at the workplace at any given time through rotation, staggered working hours, shift systems, remote working arrangements or similar measures. Sector-specific health protocols may also address these matters and special measures affecting persons with more significant vulnerabilities.

The amended Occupational Health and Safety Directive also obliges employers to include in their workplace plan the list of employees permitted to return to work and those required to work from home.

When deciding on remote working arrangements, employers must also bear in mind that while the Regulations permit individuals to perform any type of work outside the home and to travel to and from work for work purposes under Adjusted Alert Level 4, this is subject to

• strict adherence to health protocols and social distancing measures;
• the return to work being phased-in to make the workplace COVID-19 ready;
• the return to work being done in a manner that avoids and reduces risks of infection; and
• the work not being listed under the specified exclusions.
  
  

Gatherings at a workplace for work purposes are also allowed, subject to strict adherence to all health protocols and social distancing measures.

Despite the COVID-19 third wave and rapid infection rate, at least on paper, employers’ rights and obligations regarding remote working do not appear to have changed. However, the situation on the ground may well be very different.

Whilst the Regulations might not have changed, the third wave has meant that the risk profile has changed significantly. It is therefore prudent for employers to reconsider their current COVID-19 management measures, including their policies and practices on remote working, to ensure that they adequately address the current risk of COVID-19 ushered in by the third wave.

Employers who have been relaxing their COVID-19 management measures should be mindful that a “return to work plan” under Alert Level 1 will not likely look the same as one under Adjusted Alert Level 4.

What if employees refuse to work at the workplace?

A heightened sense of fear has come with the increased infection rates and employees are more reluctant to place themselves at risk of contracting the new virulent Delta strain. There is a rise in the number of employees refusing to work from the office and/or to carry out their duties in circumstances where they feel at risk. In this regard, employees are obliged to obey all reasonable and lawful commands of their employers, which includes complying with an instruction to return to work and/or measures introduced by their employers as required by the Regulations and amended Occupational Health and Safety Directive.

That said, the Directive itself provides that an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to that employee or to a health and safety representative, to pose an imminent and serious risk of their exposure to COVID-19.

Whether the justification is reasonable and there is an imminent and serious risk of exposure will be determined based on each case’s facts. The test is objective, ie, reasonable employee in the employee’s position, not the subjective opinion of the employee. However, if there is reasonable justification for the refusal, the Directive provides that no employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work in these circumstances.

Accordingly, although employees must comply with reasonable and lawful instructions from their employers, which may well include an instruction to work from or in the traditional workplace, if there are justifiable reasons to withhold services on account of the risk of exposure, employees will be entitled to do so. This renders it all the more important for employers to ensure that they are continuously reassessing the risk and adjusting their modus operandi accordingly to avoid any adverse impact on business continuity and/or unnecessary legal claims.

The nub of the Issue

Although the legal framework under Adjusted Alert Level 4 has not changed materially on paper, this does not mean that employers should not be reassessing their workplace plans and policies in practice. The workplace plan should be treated as a living document. Employers should be adapting it to cater to the regulations and the ever-changing risks associated with the virus. Ultimately, context-specific and fluid risk assessments, and fair and objective criteria must govern employers’ adaptions of their workplace plans and decisions regarding whether and when to allow employees to work remotely.