Tag: employer

Source: Supermarket & Retailer

Mandatory vaccinations may potentially speed up the process whereby heard immunity is achieved. But can an employer (as opposed to the State through national legislation, or a court order) force employees to get vaccinated?

This is no simple matter. For one, in law, vaccination is a ‘medical treatment’, not a ‘medical test’, and the difference matters. Medical testing is governed by section 7 of the Employment Equity Act, 1998, and is performed to ascertain whether an employee has a medical condition. The Employment Equity Act would come into play in circumstances where the employer requires the employee to get tested for Covid-19. By contrast, South African employment legislation does not specifically regulate when an employee may be required to undergo medical treatment.

In order to answer this question, the starting point is the constitutional right to bodily integrity and control over one’s body. The National Health Act, 2003, gives effect to this right and states that medical treatment may not be provided without the user’s informed, specific and voluntary consent. There are certain exceptions to this rule, for example where the failure to treat the individual, or group of people that includes the individual, will result in ‘a serious risk to public health’, or where a law or court order authorises the provision of a health service.

At this stage, Government has indicated that the Covid-19 vaccine will not be obligatory and there is no law requiring anyone to be vaccinated.

So, employers considering mandatory vaccination are left with the public health risk exception, together with their own obligations to maintain safe, healthy workplaces under the Occupational Health and Safety Act, 2003, to justify their decisions.

Factors such as the level of risk, nature of the workplace, the work performed and the availability and suitability of means to remove or mitigate the risk come into play. An employer’s obligations will also need to be balanced against an employee’s right to freedom of conscience, religion and belief. Such beliefs must be reasonably accommodated where they form part of the inherent tenets of the particular religion or belief system, unless the means to accommodate result in unjustifiable hardship to the employer.

Applying the law in practice

Employers who exclude unvaccinated employees from the workplace are effectively forcing them to be vaccinated, undermining the voluntary nature of consent.

However, the extent to which this may be the case will likely depend on the consequences that may arise if the employee is not vaccinated. If the employee simply continues working remotely and is not prejudiced, it may be arguable that the employee retains the ability to decide whether or not to have the vaccine. But, where the employee cannot work remotely and the employer’s policy effectively makes it compulsory to obtain the vaccine to retain one’s job, the voluntary consent principle will be violated.

There are circumstances where a mandatory vaccination policy will be permissible, namely if not having the vaccine may create a serious risk to public health. This could be the case in work environments with large groups of employees, such as call centres, mines and factories. The argument is that this increases the risk of transmission among the employees, and so too the risk of subsequent transmission in their communities. Public health risks may also be triggered in workplaces where the public is served in large numbers or may be impacted, such as retail operations, hospitals and food manufacturing operations.

Where there is not a serious risk to public health and there are less intrusive means to ensure a safe working environment (such as physical distancing, mask wearing, hand sanitising, etc.), these measures should be taken. Accordingly, when it comes to office-based roles with limited contact with fellow employees or the public, an employer would likely meet its duty under OHSA by implementing the (now) normal health and safety protocols. In these circumstances, the public health risk exception in the National Health Act would not apply.

In many circumstances, it may be more effective (and carry less legal risk) for employers to educate employees on the vaccine and encourage them to be vaccinated, rather than making it a strict requirement for entry into the workplace.

Given the competing rights and potential risks involved, and in the absence of a general law mandating vaccinations, employers will need to tread most carefully when considering making vaccinations compulsory for staff.

By Jack Needham for Wired

A survey from Morgan Stanley’s research unit AlphaWise, conducted in mid-July, found that only 34 per cent of UK ‘white-collar’ workers had returned to work, and for city workers that’s only one in six. As the BBC also reports, 50 of the biggest UK employers have no plans to ask all staff to the office full-time in the near future.

Workplace anxiety may be the driving factor in this. A ManpowerGroup survey, published last week but carried out in June, found that staff in the US and UK were both less confident about returning to work and more fearful of a second Covid-19 wave compared to Germany, France, Italy, Mexico, Singapore and Spain.

It begs the question, why return at all? Sally Carthy, director of client services at the Stafford firm Carthy Accountants, recently took the decision to get her team of 15 back into the office. She points to a few reasons why. After months of virtual meetings Zoom fatigue had set in deep – “our clients wanted to come into the office to see people,” she says – and almost half of her team requested to be back at their desk before their proposed return date of August 3, yearning for the “camaraderie” Carthy says the office provides.

Some staff members lived by themselves and found their lockdown 9-5 far too lonely, says Carthy, and others in the early stages of their careers felt they were lacking guidance and supervision.

For the most part it’s been business as usual, with the only major changes being an office one way system and extra cleaning duties. Still, Carthy experienced some pushback from staff. “Some found working at home to be enjoyable, became very used to working in home clothes and expressed some reluctance to return to the office,” says Carthy. “They all came back without too much trouble.”

Returning to the office was compulsory for staff, however Carthy says she “would have responded appropriately had anyone had specific health or other reasons for not returning”.

Given that they have worked productively from home since March, many office workers may believe the rush to go back to the office is pointless.

The figures are persuasive: although working from home fatigue is setting in, a study from social media platform Buffer, and job site AngelList! found that 98 per cent of people would like the option to work remotely for the rest of their careers. That may be down to increased productivity, a better work-life balance or the fact that, as a recent survey conducted by Culture Shift found, 26 per cent of tech workers are receiving passive-aggressive comments less often.

Working from home also helps stop the spread of the virus. A study from the University of Sussex found that a 30 per cent reduction in workplace interactions is forecasted to result in a 62 per cent reduction in new infections and a 54 per cent reduction in new deaths by the end of 2020, compared with no additional interventions.

Nobody wants to breath recycled air during a pandemic but raising safety concerns to a superior is a daunting task, and convincing your boss to let you stay at home and avoid a packed 7am pacer train is a hard sell. Can you refuse to return?

“If an employee is worried about catching coronavirus by going into work then they should talk to their employer as early as possible and discuss what options may be available,” says Tom Neil, senior adviser at ACAS, an independent advisory for employer and employee rights.

Neil suggests that this could include continued working from home, changing working hours or looking at other flexible working arrangements. If concerns can’t be resolved through an informal chat then it is possible for employees to raise a formal grievance, which must be followed if an organisation has a grievance procedure.

Concerned employees can also contact their HR department or union, if they have them.

To avoid staff mutineers, Laura Kearsley, partner & solicitor at Nelsons law firm, suggests that employers must be open with employees about safety measures, share risk assessments to reassure employees and take employee concerns on board before the doors open. “This is likely to be more effective than a blanket instruction to attend or an outright refusal to do so,” she says.

If all that fails, however, then the law is on the side of the employer. “Employees will usually be in breach of their employment contract if they refuse to attend work,” says Neil. “If an employee refuses to attend work without a valid reason it could result in disciplinary action.”

Ultimately, the employers have the power, so the best advice is to hope yours are good ones. If they’re not, then employees may be nervous about approaching the question of working from home for fear of retaliation, which could have wider consequences.

“Covid morbidity is going right under the radar in many cases,” says Andrew Watterson, professor of health sciences at the university of Stirling. He explains how staff who are forced to return to the office may not disclose Covid symptoms for fear of dismissal or loss of work, especially those in precarious or zero hour jobs. “There are good employers, but the bad ones may force workers to cover up sickness because sick pay is poor, benefit support is inadequate and furloughing and other schemes are ending.”

This could put employees in “double jeopardy” says Watterson, placing them at risk of contracting the virus in offices while encouraging them to continue working when sick. But rushed return to work measures could also hit businesses where it hurts: financially.

If an employee contracts Covid in the workplace they may be entitled to take their employer to civil court for negligence or harm caused in the workplace. A successful case would be difficult to achieve, though. An employee would need to prove they had been exposed to Covid in their workplace and Covid-19 is not yet classed as an occupational disease which, if it were, would help workers gain compensation if they contract it.

Within this minefield of grey area legislation and workplace pressure, people have little option to follow the rules and avoid posting incriminating evidence on social media.

Source: Supermarket & Retailer

Despite the widespread practice of shutting down entire retail stores and calling in deep-cleaning experts when an employee tests positive for COVID-19, there is no legal requirement for retailers (or other employers) to do either.

This is according to Talita Laubscher, partner at leading African law firm, Bowmans, who said: ‘We have been told by representatives of the Department of Health that in most circumstances, it’s not necessary to do a complete shutdown. What’s more, cleaning does not need to be completed by special cleaning service providers. It can be as simple as using Jik.’

She was speaking during a recent webinar hosted by Bowmans on employment law challenges faced by the retail sector.

Unlike other sectors, the retail industry has been open since the start of the national lockdown, when there were no directives in place to deal with situations where employees tested positive for COVID-19. In the absence of directives at the time, Department of Employment and Labour inspectors adopted certain practices, such as instructing retailers, especially food retailers, to shut down their stores and call in external cleaning specialists. These practices have in some instances continued from then on – even though they are not legal requirements contained in any of the directives.

Laubscher said in the event that an employee tests positive, the employer must consider three things: the need to temporarily close and decontaminate the affected area; placing the employee who tested positive in isolation; and determining who else has been in contact with the employee who tested positive and assessing the level of risk of that exposure. ‘In this regard, a distinction is made between a high-risk exposure and a low-risk exposure.’

Low vs high-risk exposure

A low-risk exposure is where the contact with the employee who tested positive was for less than 15 minutes and more than 1.5 metres apart, with the individuals wearing protective equipment such as masks or shields. ‘In these circumstances, the employee who was in contact with the one who tested positive can continue to work, but must be carefully monitored for the development of symptoms,’ she said.

In the case of a high-risk exposure, the employee must be placed in quarantine. A high-risk exposure is contact for more than 15 minutes and less than 1.5 metres apart, with the individuals not wearing protective equipment.

‘The employee’s absence following a high-risk exposure absence must be treated as sick leave,” said Laubscher. ‘If sick leave is exhausted, the employer might allow the employee to take annual leave, or special COVID-19 leave, at the discretion of the employer. If such leave options are not available and the employee develops symptoms, the employee may be able to claim illness benefits from the Unemployment Insurance Fund.’

Paid sick leave for employees who test positive

As soon as it comes to light that an employee is positive for COVID-19, the employer must notify the national Department of Health. If the person contracted the virus at the workplace, the Department of Employment and Labour must also be notified.

COVID-19-positive people must immediately be placed on paid sick leave, said Laubscher. ‘If they have exhausted their sick leave, they should apply for the illness benefit under the Unemployment Insurance Act.’

When the employee has recovered and is ready to work, there is no need for her or him to be tested again before returning to the workplace. ‘All the person needs, is a medical certificate confirming that she or he is fit and healthy to work again. There is no legal requirement for another test.’

This has been confirmed in the Directive issued by the Minister of Health on 11 August 2020, in terms of which repeat testing is not required for a person to de-isolate. This Directive also reduces the isolation period to 10 days. The Occupational Health and Safety Directive has, however, not yet been amended and this Directive still refers to the isolation period of 14 days.

In another recent development, the Minister of Employment and Labour has signed new directives on dealing with COVID-19-related Compensation Fund claims. The purpose is to provide clearer guidance on compensation for employees who contracted the virus at the workplace and to take new scientific developments into account.

 

Google tops SA’s best places to work

Branding firm, Universum, has released its Most Attractive Employer rankings for 2018. In it, it lists the companies that South African professionals are most keen to work for, based on aspects such as salary expectations, concerns relating to employment, goals (both short and long term), expectations around training and development and the importance of corporate culture.

The survey for this ranking was carried out between September 2017 and April 2018, and involved 21 686 professionals in a range of environments covering 35 industries and 88 professions.

These included 9 031 professionals in business/commerce, 3 197 in engineering/technology, 4 2855 in humanities, 2 289 in natural sciences, 1 627 in health care/health sciences and 1 248 in law.

Of these categories, Google ranked top in the business/commerce and engineering sections.
The company ranked second in the humanities division, fourth in law and eighth in natural sciences.

Universum’s Winani Ndlovu was quoted in a Business Tech article as saying, “Despite the high unemployment levels talent is facing, they are reporting that being aware of an employer and their staffing needs is not enough to drive the desire to work for that employer.

“Employers need to clearly articulate their value proposition to assist them in making an informed decision before joining the organisation. Clearly having a strong employer brand is imperative for the attraction and retention of talent.”

Social media is part of the modern fabric of interaction, with some reports suggesting that 66% of users spend time checking social media accounts while at work.

Industry tracker Mediakix suggests that popular platforms YouTube and Facebook consume one hour 15 minutes per day.

But when you leave your company, who owns your Twitter, YouTube, Facebook or even Gmail account? Legal experts in SA say the law is not clear.

“This is a grey area, and it would really depend on a thorough investigation of the history, purpose and origin of the social media account in question,” Pamela Stein, head of Employment Law at Webber Wentzel told Fin24.

“In order to demonstrate ownership, the employer would have to show that the social media account was clearly created for the purposes of promoting the growth of the business, and that this growth was achieved by social media activity generated during company time.”

Personal information

She added that factors over the ownership of a social media account would depend on whether the account had been created as part of the employment contract, or for the purpose of growing the organisation’s profile.

Unlike a company cellphone, computer or car, a social media account does not only exist on a mobile device, and the law assigns protections of personal information, as described in the Protection of Personal Information Act, which forbids unwanted sharing and exploitation of personal information.

“You have rights over your identity. However, if there was a clause in the contract of employment saying any personal account created during their employment is the property of the employer – perhaps the employer would have rights to it,” specialist technology attorney Russel Luck told Fin24, though he was careful to agree that the matter is not a settled one under South African law.

“If these accounts were set up so the employee could engage with the public as an extension of his work services, then perhaps the employer would have rights over it. Even more so if the email address used to verify the social media account is a work email, not personal one,” he added.

This reflects a US case in which Phonedog sued former employee Noah Kravitz over marketing on his Twitter account. The company alleged that 17 000 Twitter followers Kravitz had amassed was a customer list and demanded damages of $340 000.

A News24 survey revealed that 53% of social media users accessed the platforms while at while at work, and 3% said they would like to, but were not allowed.

Personal logins demand

Stein said that in SA, an employer seeking to claim a social media account would have to show just cause.

“Firstly, the employer would have to establish a basis for such a claim, and then sue the employee in the appropriate court depending on the cause of action.

“The employer could seek an order prohibiting the employee from any further use of the social media account and requiring the employee to take all reasonable steps to return the social media account to them.

“In addition, all social media sites allow users to report breaches et cetera and once such an order is obtained the social media platform could be notified and requested to assist.”

However, Luck argued that for a local company to demand personal logins to social media accounts would be a contravention of South African law.

“On the other side of the coin, SA law does follow international trends that you don’t need to give your employer your login details to your personal Facebook account – ie it’s unlawful to force an employee to do this.

“Where employers are making employment, promotion, dismissal or labour decisions based on access (or lack of access) to the personal Facebook account of an employee it would amount to unfair discrimination.”

Source: Fin24

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