Workers can sue for forced returns to office, but unlikely to win – expert

With thousands of people expected to return to their workplaces in January 2021, the importance of controlling the spread of Covid-19 at the office will be in the spotlight as the country experiences a second wave of infections.

This is after Health Minister Dr Zweli Mkhize confirmed on Wednesday that South Africa would surpass the peak of the first wave “in the coming days” due to the virus continuing to spread at a rapid rate.

Travel will certainly pose a great risk in curbing the spread of Covid-19, especially for employees returning to their workplace next year after having visited hotspot areas – including Eastern Cape and the Garden Route in Western Cape – during the festive season.

Questions have been raised on whether employers will exercise mandatory returns to the office or if employees will be required to go through a compulsory process of quarantining for the prescribed 14 days before they could start work.

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Attorney Richard Chemaly told The Citizen that it might prove difficult for employees to hold their employers legally accountable if they catch Covid-19 at work.

“Holding a company legally responsible for catching Covid-19 at work would be difficult if the company was operating under the framework of the regulations in place. One would have to show significant negligence on the part of the company to even get started,” he said.

Chemaly also indicated that an employee or their family could claim from the Compensation for Occupational Injuries and Diseases Act (COIDA) if they got severely sick or died.

“As with any workplace-related injury or illness, COIDA claims can be made for Covid-19 related illnesses and the Ministry of Labour issued procedures regarding this as far back as March 2020 so it has been happening,” he said.

As of August 2020, the Department of Employment and Labour revealed that a total of 3424 Covid-19 claims had been received, while 2036 were received directly paid to the Compensation Fund.

The Department said 1314 further claims were received through Rand Mutual, which operates under licence and covers workers in the mining, iron and steel industries, and has also paid out R3.3 million independent benefits.

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Asked what recourse there could be for employees being forced to return to potentially infested offices, Chemaly stated that the employee would have to present a strong case to win.

“While it’s possible to sue a company forcing employees to return to work, it’s unlikely that one would be successful.

“In order to be successful in the lawsuit, one would have to show some form of damage that’s likely to occur or has occurred, and courts would have to weigh up the cost to the company against the risk to the employees.

“It’s likely that in such an instance, the courts will turn to the government regulations as a guideline, unless there’s some really compelling reason for them not to,” he added.

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