The Minister of Employment and Labour issued a Directive on 4 June, under the Disaster Management Act (DMA), to provide clarity on an employee's right to refuse to work due to Covid-19. Employers and employees alike will need to be aware of the terms of this Directive.
Employee's right to refuse work
The Directive provides that an employee may refuse to do any work if circumstances arise which with "reasonable justification" appear to that employee, or a health and safety representative, to pose an imminent and serious risk of the employee's exposure to Covid-19. The concept of "reasonable justification" is not defined and the Directive does not provide examples of what will constitute a reasonable justification for an employee to refuse to work.
When an employee exercises their right to refuse to work, they must as soon as is practicable notify the employer of their refusal to work and the reason for such refusal. This notification may be done either personally or through a health and safety representative. The employee may exercise this right even if they have not used or exhausted any other applicable external or internal procedure.
An employee may not be incentivised or advantaged in any way for exercising their right as set out above. Further, no person may threaten to take action against an employee who has exercised this right.
When an employer receives notification from an employee of their intention to exercise their rights, the employer must consult with the compliance officer and any health and safety committee to resolve any issues that may arise from the exercising of the employee's right to refuse to work. This should include addressing the concerns of the employee regarding their "reasonable justification" to refuse to work.
Where an employee has exercised their right to refuse to work, an employer may not make any deduction from the employee's remuneration or require or permit the employee to make any payment to anyone in respect of anything which the employer is obliged to provide or do in terms of the Directive. Further, an employee may not be dismissed, disciplined, prejudiced or harassed for refusing to work. Employers are obliged to remunerate the employee for the time the employee did not work whilst exercising the right not to work.
Where there is a dispute over whether the employee failed to properly notify the employer of their refusal to work or whether the employer has failed to resolve any issue that may have arisen as a result of the employee's refusal to work, the employee may refer a dispute to the CCMA or an accredited bargaining council. If an arbitrator finds that the employer has contravened the Directive, the Arbitrator may make any appropriate order in terms of section 191 of the Labour Relations Act, which provides for the reinstatement of the employee, the re-employment of the employee, compensation and/or any other appropriate remedy.
How should employers approach the Directive?
Employers should objectively determine whether a "reasonable justification" exists for the employee's refusal to work. An obvious example where a "reasonable justification" would exist is an employee who refuses to work because a colleague contracted Covid-19 at work and was in close proximity to the employee. In such circumstances it would be reasonable for the employer to first deep clean the work area before employees attend work. Where an employer has, however, taken all reasonable and legally required steps to safeguard employees from Covid-19 but the employee unreasonably refuses to work, an employer may instruct an employee to work and failure to do so may result in the refusal to comply with a lawful and reasonable instruction which could attract disciplinary measures.
In the absence of clear guidance on what "reasonable justification" is, the right to refuse to work as set out above may be abused by unprincipled employees. In such circumstances, employers should keep a record of the measures that were in place at the time the complaint arose and all attempts to convince the employee of the reasonableness and adequacy thereof. If it is clear that the employee intentionally abused this right, the employer may reduce the employee's remuneration for the time the employee refused to work. This will not be the case if the employee acted in a bona fide manner and the employee's concerns were addressed by the employer.
The following measures could be implemented by employers to avoid disruptions to work and disputes about employees refusing to work.
- consistent compliance with the Directive as well as the general duties of an employer in terms of the OHSA, notably the need to take reasonably practicable measures to provide and maintain a safe and healthy work environment. This includes implementing reasonably practicable measures in addition to the minimum legislated requirements which have been identified after risk assessments have been conducted or after input have been received from employees or employee representatives;
- ensure that an adequate risk assessment is conducted prior to the commencement of work, specifically dealing with any potentially unsafe areas or conditions, and ensure that adequate control measures, including the availability and suitability of PPE, are implemented;
- comply with physical distancing requirements in accordance with the risk assessment, sanitising, screening, isolation and all other requirements set out in the DMA Regulations, where applicable; and
- regularly and frequently convene health and safety committee meetings to proactively monitor the workplace and address any concerns raised by employees about Covid-19 transmission risk.