COVID-19: THE NEW WORKPLACE – THE EMPLOYER’S HEALTH AND SAFETY OBLIGATIONS DO NOT STOP AT THE OFFICE DOOR

By Talita Laubscher Thursday, April 30, 2020
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COVID-19 has turned the way we work upside down. The lockdown has caused a large number of employees to work from home, and the phased approach to the lifting of lockdown in South Africa will require remote working for many employees for some time to come.

Remote working has accordingly, for many, become the new normal. It is important that employers understand that their obligations to ensure the health and safety of their employees do not stop at the office door. Rather, these obligations extend to where the employee is working outside of the conventionally understood workplace.

Both the Occupational Health and Safety Act (OHSA) and the Basic Conditions of Employment Act (BCEA) place a legal obligation on employers to provide and maintain, as far as reasonably possible, a workplace that is safe and without risk to the health of employees. Where employees perform their duties from home, the definition of ‘workplace’ can be extended to the home office.

The result is that employers are required to ensure that employees’ ‘home offices’ are reasonably safe. This includes ensuring that employees have appropriate safety equipment that they may need while working from home.

In the normal course, employers are expected to inspect employee’s home office arrangements in order to ensure that they are reasonably safe. Due to the lockdown, it is impossible for employers to assess the safety of their employees’ remote working spaces. It is, however, advisable that employers obtain confirmation from the employees in writing, that their home offices are, indeed, reasonably safe. In appropriate circumstances,  employees may be required to sign indemnity forms confirming this and indemnifying the employer against any claims that may later arise.

In the absence of indemnities, employers will remain open to liability – although the Compensation for Occupational Injuries and Disease Act does offer some protection.

In addition, employers should take reasonable steps to provide their employees with the necessary information, instructions, training and supervision while performing work from home.

Employers should also ensure that even though employees are working from home, their rights under the BCEA are protected. For example a clear distinction should be made between employees who are working remotely, employees who are on annual leave and employees who are on sick leave.

Employees who are on annual or sick leave, should not be required to work. Additionally, for employees earning below the BCEA threshold, their hours of work and overtime should be regulated and should comply with the provisions of the BCEA.