Must you work if your employer is an essential service provider?

Yes, if your work falls under essential services, you are obliged to continue working during the national lockdown.
Read more about the categorization of essential services online.

Can you refuse to work if your employer is an essential service provider?

May you lawfully refuse to attend work for fear of contracting COVID-19?

To answer the above questions, it is important to note that essential services employees are not bound under any oath to render services at all costs, they may lawfully refuse to attend work. When this happens, it is essential to consider the terms and conditions of the employment contract. However, essential workers should not unreasonably refuse to work if they are in a position to do so.
An employer may retrench or dismiss an employee during the nationwide lockdown, but the dismissal must be carried out on a manner which is procedurally and substantively fair.

Employers designated as essential services during the period of lockdown lawfully obliged to maintain a safe working environment and take the necessary precautions in terms of the Health and Safety Act and any other regulations issued by government from time to time.
Essential workers who contract COVID-19 during the lockdown are also entitled to compensation under COIDA. To qualify, you will need to show that you contracted the virus in the course and scope of employment.

Must you go to your work place if you are a non-essential worker?

Employees who are classified as non-essential workers must stay at home during the national lock down, and work from home if possible. An employee who is not involved in a business delivering essential services and goods and who is forced to report for work is entitled to contact the SAPS [South African Police Service] and report their employer.
An employer that does not provide an essential good or service but nevertheless continues to operate during the lockdown period is acting unlawfully unless operating remotely from home.

“No work no pay”

A question constantly being asked is whether it is legal for an employer to implement the no-work-no-pay principle during the lockdown.
Yes, it is indeed legal depending on the terms and wording of the employment contract between the parties.
If your employer has implemented this principle you must read your employment contract.

If no employment contract is in place, the common law principle of impossibility of performance can be raised, which means that the employer can still legally implement no-work-no-pay principle.
In the extraordinary circumstances of Covid-19 pandemic, the “no work no pay” principle should be used by employers as a measure of last resort.

The employer should consider other alternatives such as require employees to take annual leave during the lockdown. This is a better option than implementing the no-work-no-pay option.

Employers are also responsible and urged to claim for relief from the COVID-19 Temporary Employee/Employer Relief Scheme (TERS) should they be unable to pay their employees during the national lockdown.

Should the employer not succeed in claiming relief from (TERS), affected employees can apply for UIF, and employers are obligated to assist them in doing so.

CONCLUSSION

The national lock down is the first of its kind in our nation and our law does not cover all the issues that have resulted from the COVID -19 pandemic.Businesses should in our view aim to achieve agreement with employees on workable solutions that ensure business sustainability while protecting the livelihood of their employees.

Disclaimer: This article is provided for informational purposes only and not for the purpose of providing legal advice.

Author: Angela Vushe

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