Legal Management Consulting

01/07/2020

Death and Taxis

It has been said that two things in life are certain, being death and taxes. What is also close to certain is that after death, a funeral will follow.

How should an employer respond when an employee discloses upon arrival at work that they have attended a funeral, which has a statistically high likelihood of COVID-19 transmission? Funerals are hotspots for transmission because it is extremely difficult to practice social distancing, with physical contact being all but certain as people greet and comfort one another, surely the most natural response to the death of a loved one. Moreover, despite any legislative restrictions, congregants are likely to sing, an activity which significantly increases the risk of transmission through airborne water droplets, much more than is the case from speaking.

In these circumstances, should the employee be required to self-isolate?

In brief, no. The same principles which apply to those employees who travel in taxis or other high-risk public transport apply, as is indeed the case when the employee is at work.

The employee must always wear a mask, undergo temperature checks and other symptomatic assessment before leaving home and when arriving at work, observe social distancing measures in the workplace and in every other way conduct themselves responsibly to maintain a safe working environment. Employers, similarly, especially the designated COVID compliance officer, must be diligent in enforcing these health measures and monitoring for symptoms.

A useful resource on these and other matters pertaining to Covid-19 is http://www.nioh.ac.za/national-resources/.

Given the choice, employees should be encouraged to carefully consider whether attendance at funerals is wise, as participating in virtual funerals are a better option than increasing the risk of infection by attending in person.

19/06/2020

Simplicity takes hard work. The process of creating a solution that is intuitive and seamless from complex contexts takes craft. At Legal Management Consulting, we believe in developing legal solutions that are insightful and effective for our clients.

10/06/2020

REFUSAL TO WORK DUE TO EXPOSURE TO COVID-19

The new Direction issued by the Minister of Employment and Labour on 4 June 2020 expressly provides employees the right to refuse to 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”[1], irrespective of whether that employee has exhausted internal or external remedies [2] (our emphasis).

Broken down into its component elements, this means that such refusal is justified only when:
(1) either an employee or a safety representative at a workplace (only one and not both need to hold the view);
(2) identify an imminent (likely to happen very soon) and serious (real) risk (the probability that injury or damage will occur) of exposure to COVID-19; and
(3) there is a reasonable justification for holding that view (any reasonable person in those circumstances would hold such view: it is not enough that subjectively the employee or safety representative holds the view: it must be objectively justified.)

These are accordingly significant hurdles to overcome before a refusal to work is justified on the basis of a risk of exposure to COVID-19.

If the employee or safety representative does form the view that the risk of exposure is serious and imminent, they must as soon as is reasonably practicable notify the employer of the refusal and the reason for the refusal, and the employer must after consultation with the compliance officer and any health and safety committee) endeavour to resolve the issue[3].

The employer may not expose the employee to any occupational detriment, including deduction from income[4] or offer any advantage[5] to the employee in respect of the refusal to work. If there is a dispute in respect of such refusal, the dispute is to be arbitrated at the CCMA or applicable Bargaining Council[6], a process which may take months, as there is currently no provision for an expedited process in regard to these disputes.

The question is therefore: how great is the risk of an employee justifiably refusing to work in terms of S48 on the basis of the risk of exposure to COVID-19? In reality, the risk is limited if the employer has conducted the risk assessment and prepared a workplace plan which complies with the requirements of the Direction[7], and complies with such plan and the measures outlined in the Direction for the health and safety of its employees[8]. These are in any event an existing legal obligation, so there is no additional burden being placed on the employer.

In effect, employees generally and safety representatives specifically have become the eyes and ears of the State to ensure compliance with COVID-19 occupational health and safety measures at the workplace. Responsible and compliant employers should, in theory at least, have little to fear from employees who refuse to work out of fear of exposure to the virus.

Please contact us should you need any assistance in achieving COVID-19 safety compliance in your workplace.

[1] S48 of the Consolidated COVID-19 Direction on Health and Safety in the Workplace issued by the Minister in terms of Regulation 4(10) of the National Disaster Regulations (“the Direction”)

[2] Direction, S50

[3] Direction, S49

[4] Direction, S53 & S54

[5] Direction, S51

[6] Direction, S55 and S56

[7] Direction, S17-S19

[8] Direction, S20-46

10/06/2020

Join Employment Law Specialist Raymond Meneses and OHS Specialist Nicholas Graham as we discuss what to do if an employee is COVID positive. Free webinar today at 3:00 pm.







Topic: What to do if an employee is COVID positive
Time: Jun 10, 2020, 03:00 PM Johannesburg

Join Zoom Meeting
https://lnkd.in/dQe6FAT

Meeting ID: 849 7416 8533
Password: 868671

04/06/2020

Don’t miss out! Watch this free webinar today at 3:30 by Nicholas Graham from SRM and Raymond Meneses from LMC. This webinar looks at Using Software to manage compliance remotely from the perspective of a labour lawyer and a health and safety specialist.

https://lnkd.in/dZhVtA3

Meeting ID: 885 3423 8153
Password: 374733

04/06/2020

Sickness in the time of COVID.

South Africa has returned to work under lockdown level 3. Whilst these regulations have been declared unconstitutional in a recent judgment of the High Court, they remain in place until the legal process currently underway in respect of their possible amendment or replacement has concluded.

Many of those returning to work are COVID-19 positive. Some are symptomatic. Others are not. What must employers do if employees:
(1) Arrive at work and have symptoms associated with COVID-19?
(2) Test positive for COVID-19?
(3) Want to return from sick leave after having had COVID-19?
In addition, at what point is an employer obliged to shut down as a result of a COVID-19 breakout? What constitutes a cluster infection?

This brief article seeks to address these issues. The Regulations issued in terms of the Disaster Management Act require every employer to have a Workplace Plan in place before reopening their enterprise, and that plan must include the development of screening facilities and systems appropriate to the size and nature of that business. Screening involves an assessment of whether the employee has any symptoms or exposures which could be indicative of being COVID-19 positive.

The first screening actually takes place at home, when the employee gets dressed. It’s at that stage that the employee does a self-assessment to see if they have a dry cough, breathlessness, or other symptoms associated with COVID-19. The employee must assess themselves before they get on to public transport or make contact with other members of the public, as failing to do so places others at risk.

The second screening takes place at work, where the employee’s temperature is taken using a non-contact thermometer to assess whether the employee has a temperature of 38 degrees or more, and the declaration by the employee of any symptoms or exposures (travel to hotspots or contact with COVID-19 positive individuals). This must be recorded by the employer and the records kept so that if contact tracing is required at a later stage, the records are available. This is also part of the employer’s obligation to maintain a safe working environment.

If an employee arrives at work and has symptoms of COVID-19 or makes a declaration indicative of high risk (such as close contact with a COVID-19 positive individual), the employee must immediately be provided with a surgical mask and relocated to a secure, well-ventilated area (preferably identified prior to the incident: a designated isolation area), and arrangements made for the employee to be medically assessed by their own health care provider, or by the employer’s designated health care-provider if the employer has one and their policy so provides.

Dependent on the outcome of that assessment, the employee should return to work if not COVID-19 positive. If the employee is COVID-19 positive, they must self-isolate until cleared to work again, typically a period of 14 days either from becoming symptomatic (in mild cases) or from the last day that therapeutic oxygen was administered (in severe cases). It is not a legal requirement to have a test declaring them to be COVID-19 negative. The employer is obliged to provide the personal details of the employee to the national Institute for Communicable Diseases (NICD) and co-operate with representatives of the State Departments who make contact with the employer to initiate contact tracing.

There are currently no clear guidelines on what is considered to be a cluster infection, nor are there guidelines on when to shut down a business where multiple employees contract the virus, or for how long the business will be shut down.

We will remain vigilant and supportive of the reasonable recommendations of the Departments of Health and Labour as they navigate how we should be responding to cluster infections in the workplace.

21/05/2020

WHAT IS A WEBSITE DISCLAIMER AND WHY IS IT IMPORTANT?

Website disclaimers can help you. They pack a punch in the legal department and are significant.

Declaimers protect you. A disclaimer is a brief declaration of limiting liability which can be located on the homepage of the website. The declaration is a statement of the legal rights of the website owner relevant to the contents of the website, and communicated to the reader or user.

The user includes anyone visiting the website or using the content from the website for any purpose. Depending on the wording of the disclaimer, the website owner may shift the whole or part of the responsibility for the user of the website content in the event of a dispute arising.

Users in this case would be anyone who decided to make use of the website information through browsing, using or sharing the content which was made freely available and accessible through the internet.

ADVANTAGES
The benefits disclaimers include: -
• Protecting your content and intellectual property;
• Sharing responsibility: mitigating legal risks for business by reasonably eliminating or reducing accountability;
• Having assurance that an agreement is in place between parties (with all the unfamiliar internet traffic that comes across the website, it ensures users to consent to your website terms prior permitting browsing or purchasing);
• Clarity on the use of the data;
• Providing clarity and a mutual understanding between the parties around critical terms such as but not limited to: ownership of content, data, privacy, confidentiality, accuracy of information, opinion versus legal advice and the required or recommended professional consultation before application or use of information/data/ content and;
• Receiving the required consent around age-appropriate sites. E.g. gambling sites.

CONCLUSION AND RECOMMENDATION
Website disclaimers cannot guarantee that you will be insulated from possible legal action instituted against your business. However, how the disclaimer is structured around responsibilities to illustrate your terms of the use of your content, could greatly assist with providing clarity and consent between parties resulting in reducing the legal risks for your business.

While there are many disclaimers you can find online, we recommend you obtain legal assistance to ensure that your disclaimer is drafted to best protect your interests by linking the use of the site, disclaimer and terms and conditions. This will ensure each user has agreed to be bound to the terms.

It is equally important to draft a tailor-made disclaimer that mitigates the risk of liability that your website / company may experience, by alleviating sole accountability- insofar as reasonably possible.

Feel free to reach us if you require guidance drafting a disclaimer for your website.

[email protected]

13/05/2020

Watch this free webinar by Raymond Meneses from LMC and Nicholas Graham from SRM. This webinar looks at business after lockdown from the perspective of a labour lawyer and a health and safety specialist.

Employment law specialist Raymond Meneses and Occupational Health & Safety Specialist Nicholas Graham discuss what employers must consider when reopening the...

08/05/2020

08/05/2020

Compulsory Workplace Plans: Special Arrangements for Vulnerable Employees

On 29 April 2020, the State published new regulations dealing with the return to work and the employer’s obligations to develop Workplace Plans to address COVID-19 safety measures for its employees. Each Workplace Plan must contain appropriate safety measures for its employees, broadly outlined in the regulations.

There are areas of ambiguity in the regulations and COVID requirements for persons who may require special treatment during this time, who I will refer to as vulnerable employees. Vulnerable employees are those with comorbidities (pre-existing medical conditions which place the employee at greater risk of death from COVID-19) and employees over 60.

The question has been raised whether the regulation providing for “special measures” in respect of vulnerable employees is in conflict with annexure E to the regulations, which appears to suggest that vulnerable employees should stay or work from home.

The relevant portion of the regulations appears in full below, for ease of reference:

(5)All employers must adopt measures to promote physical distancing of employees, including-
(a) enabling employees to work from home or minimising the need for employees to be physically present at the workplace:
(b) the provision for adequate space;
(c) restrictions on face to face meetings:
(d) special measures for employees with known or disclosed health issues or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID -19;
(e) special measures for employees above the age of 60 who are at a higher risk of complications or death if they are infected with COVID-19.

ANNEXURE E WORKPLACE PLANS
Regulation 16(6)(b)
A COVID -ready Workplace Plan must be developed prior to the reopening of an enterprise employing persons or serving the public. For small businesses, the plan can be basic reflecting the size of the business. while for medium and larger businesses, a more detailed written plan should be developed given the larger numbers of persons at the workplace. The Plan for medium and large businesses must include the following:
1.The date the business will open and the hours of opening;
2.The timetable setting out the phased return -to -work of employees, to enable appropriate measures to be taken to avoid and reduce the spread of the virus in the workplace:
3.The steps taken to get the workplace COVID -19 ready;
4. A list of staff who can work from home; staff who are 60years or older; and staff with comorbidities who will be required to stay at home or work from home:
5.Arrangements for staff in the establishment:
(a)sanitary and social distancing measures and facilities at the entrance and exit to the workplace;
(b)screening facilities and systems;
(c)the attendance -record system and infrastructure:
(d)the work -area of employees:
(e)any designated area where the public is served;
(f)canteen and bathroom facilities;
(g)testing facilities (for establishments with more than 500 employees);
(h)staff rotational arrangements (for establishments where fewer than 100% of employees will be permitted to work).
6.Arrangements for customers or members of the public, including sanitation and social distancing measures.

I don’t believe that there is any conflict with these provisions.

Regulation 5 deals the obligation of employers to “adopt measures to promote physical distancing of employees, including…(d) special measures for employees with known or disclosed health issues or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID -19”

Annexure E deals with the obligation of an employer to include in their Covid-Ready Workplace Plan (“the Workplace Plan”) a “list of staff who” (1) can work from home; (2) are 60 years or older and (3) staff with comorbidities who will be required to stay at home or work from home.

The provision in Annexure E referred to above is inelegantly drafted, and it is not clear whether the qualification “who will be required to stay at home or work from home” applies to both category 2 and 3, or just category 3, but for present purposes we will assume it applies to both category 2 and 3. All this means is that the employer must prepare a list of staff over 60 and staff with comorbidities who will be required to stay or work from home. It assumes that there are staff over 60 and/or staff with co-morbidities who are not required to stay at home or work from home. For those staff who are over 60 and those staff who have comorbidities who are not required to stay at home, special arrangements must be made over and above those which apply to other staff members at the work place as regards social distancing. This is because staff over 60 years of age or those with comorbidities are more vulnerable, but are not necessarily excluded from returning to work.

Those special measures are a reasonable accommodation on the part of the employer in terms of the employer’s obligation to provide a safe workplace, and may include, for example, adjusting any of the arrangements listed in Regulations 5(a) to (c) and 16(6)(b)5 a-h so that more stringent rules apply to the safeguards in place in respect of social distancing for more vulnerable employees. Increased distance from other staff at their work station, increased sanitation, and higher -rated PPE are all examples of special measures which could be implemented to protect those vulnerable employees.

These special measures should be included in the Workplace Plan and cross-referenced with the list of vulnerable employees listed in the Workplace Plan to reflect the specific special measures in place for each vulnerable employee.

Moreover, you may require employees to work from home, provided that requirement is reasonable.

My advice is that you obtain a certificate of fitness for work from a medical practitioner in respect of any vulnerable employee to determine whether they can work from home or the workplace, and whether there are any specific special arrangements to be made in respect of that employee. To facilitate that process, it would be helpful to develop a questionnaire to determine which staff members are vulnerable employees, which will inform the investigation undertaken by the medical practitioner and the special arrangements appropriate to each vulnerable employee. The questionnaire may include the nature of the medical condition, current treatment, job title, general duties and age, for example. Some detail would be provided by the employee, and some would be populated by the employer.

These strategies are part of the employer’s general obligation to provide a safe working environment, and will be considered in the event of an inspection from the Department of Labour, so should be part of the usual records kept for that purpose.