What are your rights when it comes to negotiating working from home?

As South Africa gears up  to move to Level 3 more businesses are going to be able to operate and possibly require employees to be physically present at work. But what then becomes the fate of those employees like moms who are pregnant or those with babies? Can they negotiate to work from home still?

Also Read: Maternity leave under Covid-19 circumstances – what are your rights?

“It is obvious that Covid-19 poses an elevated threat of illness.  The Legislature has been engaged with measure intended to “flatten the curve”. Flattening the curve does not mean that one will not contract Covid-19, but rather is attempts to limit the exposure and probabilities,” says Shaa’ista Bulbulia of Govender Patel Dladla attorneys.

Also Read: All your pregnancy and covid-19 FAQs answered by Dr. Zende

There are special measures for employees with underlying health issues. But pregnant moms and those with babies are not explicitly included in these.

• The level 4 Regulation determines that “special measures” must be taken for employees with known or disclosed health issues and those with a high risk of complication or death (this includes those over 60 years).  The special measure are not defined. It is patent that no specific mention is made of pregnant employees or those who care for juveniles.

Pregnant moms and those with babies cannot refuse to return to work but employers must comply with all Covid-19 safety standards. But there is room to negotiate. 

• The Regulators have taken steps to ensure that all persons are protected at work and the Department of Labour has been fastidiously at work ensuring compliance. Hence, when called to return to the place of work, an employee, being pregnant or one caring for juveniles may not decline.   They may require that the employer ensure that all standards are complied with.  This could entail that certain employees remain at home.  One would expect that employees who are of high risk would be the first in line to remain at home.

Generally, employers should provide a safe working environment  for all

• The common law dictates that the employer has the right to determine the place of work, but the employer is also obliged to ensure a safe working environment and to take what steps are reasonably required of it, the employer,  to achieve its obligation.  This common law obligation is codified in Section 8 of the Occupational Health and Safety Act (“OHSA”).  What constitutes reasonable steps is given form in this section, and this includes, assessing the circumstances of the work to be performed as well as any training as maybe necessary.

What is a safe environment in light of Covid-19?

• In respect of COvid-19, the Department of Labour initially issued guidelines requiring that employers comply with the Regulations relating to Hazardous Biological Agents (“HBA”) which were previously promulgated under OHSA. Regulation 10 of it requires employers to limit the number of employees exposed to the HBA, and take the standard precautions dictated therein and other reasonable measures to limit the spread of the HBA, including the provision of Personal Protective Equipment (“PPE”).
• At a general level, the Regulations determine that all employees who are sick or have Covid symptoms cannot return to work.   The Regulations establish minimums standards and employers are entitled to agree on higher standards.
• In terms of these Regulations, the employer is required to ensure that-Social distancing must be maintained (workers are at least 1.5 meters apart, alternatively barriers and PPE must be put into place) and the number of employees must, as far as possible be reduced; Screening of employees is undertaken.  If the screening determines a person may have Covid they must be isolated and tested; Sanitizers must be available; Workspaces must be sanitized;

• The regulations are more strenuous for business with in excess of 10 people in attendance.  If more than 500 people are in attendance, the employer is required to undertake a risk assessment and provide this to the Department of Labour. Adequate facilities are provided for sanitary purposes, including washing of hands and the like; Employees must wear masks, and employers must provide these masks; There is adequate and proper ventilation.

Legal opinion: Shaa’ista Bulbulia of Govender Patel Dladla attorneys.

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