Compensation and working remotely: Legal experts weigh in on the work environment

Legal experts have weighed in on how companies can prepare the workplace during and post the lockdown, which was implemented last month to prevent the spread of Covid-19.

A panel consisting of the directors of law firm Cliffe Dekker Hofmeyr – Fiona Leppan, Gillian Lumb and Michael Yeates – hosted a webinar on Friday, discussing the legal employment implications for returning to work after the lockdown and the push for employers to embrace the Fourth Industrial Revolution.

As a result of the lockdown, which kicked in at midnight on 26 March, some employees have not been able to work, while others are on the frontline of the fight against the virus or had to work remotely from home.

What does this mean in terms of occupational health and safety? Is the home environment considered a work environment if someone contracts the virus?

Leppan said a claim under these circumstances would be difficult to make as the onus was on the complainant to connect the contracting of the virus to the workplace.

Low-risk exposure

“When an employee is asked to work at home – where employees are working in the scope of their duties – you may find it difficult to prove you fell ill by being exposed to Covid-19 while at the workplace [the home environment].

“It’s unlikely to meet the claim successfully under the circumstances,” she added.

In an occupational setting, this would be considered a low-risk exposure environment.

A medium-risk exposure environment would include the high-volume retail trade where persons interact with customers who may or may not expose them to the virus, while a high-risk exposure includes a medical transport worker or someone working in healthcare delivery.

Frontline workers are those in direct contact with the virus, such as medical doctors and ICU nurses.

What if the risk liability of Covid-19 is not occupationally acquired and does not meet the test?

Leppan said this was where employers should be careful.

“The employer must be careful because there is a possibility to claim damages because one is then not protected from that bar against civil liability in terms of Section 35 of Compensation for Occupational Injuries and Diseases Act,” she added.

Working from home

According to Lumb, working from home proved to be beneficial for employers as it improved productivity, lowered costs and assisted in curbing the spread of the virus.

It will, however, present a few challenges for the employer.

“We accept that it is difficult. There are practical issues that employers must give careful consideration to the lack of structure. For many employees, this is a significant challenge, it can be quite debilitating and de-motivating,” she said.

“In addition, communication is significant as some employees need support and feedback from their employer on a regular basis, and finding the balance with not micro-managing employees and placing trust in your employees to perform their jobs.”

Lumb said while working remotely might lead to employers needing to restructure their workforce, this needed to be done within the confines of the law.

“The reality is that you may find that you may not need as many people in the corporate environment, so therefore you need to consider retrenching – you still have to comply with regulations and the cost implications, you want wherever possible to avoid that,” she added.

The country will be shifting to level 4 of the lockdown from 1 May, which is part of a risk-adjusted strategy of the phased re-opening of the economy by allowing some activity to resume with extreme caution to limit community transmission.

The public, however, is still encouraged to stay at home, other than for essential movement and, where possible, to continue working remotely.

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