18 May 2020 by Cliffe Dekker Hofmeyr Employment Alert

Clearing up the confusion: Setting off COVID-19 TERS benefits and the limits of employer liability in relation to employees working from home

The outbreak of the COVID-19 pandemic and the unprecedented changes to working conditions have raised interesting and sometimes novel questions about the duty of employers and the entitlements of employees in a world of work that has changed dramatically. Recently, there have been various discussions in relation to an employee’s entitlement to Temporary Employment Relief Scheme (TERS) benefits and the duty of employers to ensure the health and safety of their employees, particularly those who are now working from home.

There are two main issues. Firstly, whether an employer may set off the payment of annual leave against an employee’s TERS COVID-19 benefit, and secondly, the health and safety obligations of employers in relation to employees who are working from home.

TERS COVID-19 relief and employees who have been directed to take annual leave

The TERS COVID-19 directive makes provision for an employer to claim a TERS COVID-19 benefit on behalf of qualifying employees. The purpose of the TERS COVID-19 benefit is to provide relief to employees who have suffered or will suffer a loss of income due to the closure or partial closure of their employers’ operations as a direct consequence of COVID-19.

In terms of paragraph 5(4) of the amended TERS directive, gazetted on 4 May 2020 (Amended Directive), an employer who has directed an employee to take annual leave during the period of the lockdown in accordance with section 22(1)(b) of the Basic Conditions of Employment Act 75 of 1997 (BCEA), may set off any amount received from the UIF in respect of that employee’s TERS COVID-19 benefit, against the amount paid to the employee in terms of annual leave. Such set off is only permissible provided that the employee is credited with the proportionate entitlement to paid annual leave in the future.

It is assumed that the Amended Directive was intended to refer to section 20(10)(b) of the BCEA, which reads as follows: “Annual leave must be taken, if there is no agreement in terms of paragraph (a), at a time determined by the employer in accordance with this section” (Our emphasis)

Accordingly, in terms of the Amended Directive, employers who have directed employees to take annual leave, are entitled to set off the annual leave payments made to employees against the TERS COVID-19 benefits received from the UIF, provided that the proportionate annual leave of the employees is credited to the employees’ future leave entitlement.

The OSH Act and the home as a “workplace

The OHS Act places a positive duty on employers to provide and maintain, as far as reasonably possible, a safe working environment that poses no health and safety risks to employees.

The current lockdown has necessitated that many employees work from home. The home has since become the premises from which many employees perform work within the course and scope of their employment. The questions then arise as to whether employers are bound by the provisions of the OHS Act in relation to their employees’ working environments at home? What liability, if any, will an employer incur as a result of unsafe working conditions at an employee’s home? What, if at all, is the duty of an employer to ensure that an employee does not contract COVID-19 from a workplace which is also their home?

As a starting point, it is important to consider the definition of ‘workplace’ as defined in the OHS Act. ‘Workplace’ is defined in section 1 of the Act, as “any premises or place where a person performs work in the course of his employment.” Given the ambit of this definition, an employee’s home working environment is included in the definition of workplace for purposes of the OHS Act.

The duties of an employer in terms of the OHS Act are contained in section 8 and include inter alia the duty to, insofar as is reasonably practically possible, eliminate or mitigate any hazard or potential hazard to the safety of employees. In addition, an employer is also tasked with the duty to enforce such measures as may be necessary in the interests of health and safety in the workplace.

The duties contained in section 8 therefore require that the employer has a measure of control over the workplace environment in order to enforce and maintain the required standards of health and safety. In the home working environment, the employer does not have the control over the premises to put measures in place to ensure that health and safety standards are met, neither does the employer have the control to enforce such measures. It is unreasonable for instance to require of the employer to put in place and enforce measures to control and screen visitors to the home, most likely occupied by more persons than just the employee.

An attempt by employers to dictate and enforce certain health and safety standards in an employee’s home, would arguably constitute an invasion of an employee’s privacy in the absence of specific statutory powers to do so and a task that in any event is not reasonably practical for the employer to enforce. To place the duty on an employer to enforce health and safety standards in an employee’s home environment, would also then place a duty on the employer to maintain the health and safety standards of more than just those in their employ.

The OHS Act presumably envisages that the employer must eliminate or mitigate any hazard or potential hazard to the safety of employees that may arise from the working environment created and provided by the employer, not that of the employee.

The employer’s duty to ensure a healthy and safe working environment accordingly would not extend to an employee’s private residence when that employee is working from home during lockdown. As a result, an employer would not be liable for any illness that an employee contracts in their home environment while performing work in the scope of their employment, including contracting COVID-19.

The position is, however, different in relation to any equipment that the employer supplies to the employee to perform work in the course and scope of their employment. The employer must ensure that the equipment provided to employees is safe and complies with any regulations that may apply.

As we continue to navigate these uncharted territories, it is the principles of reasonability and justifiability that will carve out the way forward. The duties and obligations placed on employers during this time cannot be unreasonably impractical, nor can they unjustifiably infringe on the rights of employees to privacy even if the workplace is increasingly also the home.

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