Employees’ rights during the Covid-19 pandemic

09 June 2020,  Sinenhlanhla Khoza 3505
With us South Africans finding ourselves amid the Covid-19 pandemic and subsequent nationwide lockdown, you may very well wonder how remuneration and leave of employees are regulated in a time such as this.

In the midst of the lockdown that has endured since 26 March 2020 up till now, employees who are non-essential or permitted workers have been compelled not to report for duty, resulting in many workers not receiving an income. Despite the various regulations that have been adopted ever since the declaration of Covid-19 as a national disaster, employees still remain protected by the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA).

It is trite that a duty of the employer to remunerate an employee would, under normal circumstances, arise when the latter has tendered his/her services to the employer. However, with the Covid-19 pandemic, non-essential or permitted workers are unable to report for duty through no fault of their own. If an employee is able to work from home, then he/she will be entitled to receive their full salaries and benefits, however, the employer may reduce a certain percentage of their salary if the financial circumstances of the business necessitate such salary changes.  Before such a decision may be made by the employer, employees must be consulted as this would amount to a change in their terms and conditions of employment. 

Should an employee be unable to work from home due to the nature of their job, the employer may require the employee to take annual leave during such time in order to be eligible for a salary.  Employees are entitled to a certain minimum annual leave day in terms of the BCEA. If the employee is placed on annual leave, the employer may not request their employees to work from home and must remunerate them for all days described as annual leave.  The employer may further consider placing the employee on special leave in cases where they have exhausted their annual leave and must be remunerated during such leave, depending on the financial standing of the business. An employee who is unable to work from home and has no available annual leave days may continue getting paid during the subsistence of the lockdown, as again, this is through no fault of his/her own. 

Employers can make use of the Temporary Employer-Employee Relief Scheme (COVID19TERS), which is aimed to compensate employees who have suffered a loss of income due to the outbreak of Covid–19. Companies have been encouraged to submit claims on behalf of their employees. 

Therefore, despite the nationwide lockdown that has affected every employer and employee in our country, employers in their dealings with employees, must not operate under the assumption that their failure to comply with relevant labour legislation will be excused by the Covid-19 pandemic as any act of the employer during these times is still subject to the scrutiny of the CCMA and Labour Courts.  

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