Returning to work after a lockdown – Some practical considerations for employment relations

The start of a new decade was welcomed by many with hope and optimism for the future that awaited; that is until the world was introduced to the Coronavirus (COVID-19), which has doused our spirits for the future and simultaneously turned the world up-side-down. Now we are faced with a virus that represents a threat to the entire human race as well as to the global economy like no other before. The severity of the situation has been seen by many as the most challenging threat faced by the human race since the Second World War.

Now as we find ourselves in the epicentre of the national lockdown, we are charged with firstly, keeping the hope alive and secondly, to turn our vision beyond the lockdown and into the future that awaits. We can rest assured that we are not alone in this ordeal and that there are valuable lessons to be learnt from other countries who have begun to ease the restrictions imposed and started to return to some semblance of the life they once lived.

At this juncture, it is important to note that there is no specific medicine to prevent or treat the virus, despite our brightest minds working endlessly to provide the world with some relief. As such, the lockdowns imposed within our country and abroad are an attempt to prevent the spread of the virus and to assist the health care system to ensure that it is not overburdened during this critical time. Therefore, it is important to note that the lockdown will not eradicate the virus. In this regard, the entire world population is as susceptible to a re-ignition of the pandemic and any reintroduction of the virus would be just as dangerous as the initial outbreak.

Returning to work after the lockdown in other jurisdictions.

In many parts of China and specifically, in the city of Wuhan, which was subjected to the most aggressive quarantine in China after the coronavirus first emerged in the city late last year, things have begun to slowly return to normal with the lockdown imposed at the end of January expected to be completely lifted on 8 April 2020.

According to an article written by Laura He and published by CNN on 11 February 2020, China is purportedly struggling to return to work after the lockdown was imposed. This has been attributed to several factors which include, work shortages, transport disruptions, a lack of medical supplies and heavy-handed local officials. This has had the inevitable effect of a sluggish recovery for most areas of the economy and country at large.

South Africa can learn a lot from such reports in that we must prepare ourselves for a sluggish recovery period after the lockdown, which may be exacerbated by our unique circumstances as a country. It is therefore clear that we will have to take a cautious approach to life after the lockdown until a vaccine to treat and prevent the disease has been synthesised.

Concerns on the Post-lockdown Era

There have been many concerns raised across the world about lifting the restrictions imposed and returning to our normal lives, free of physical distancing measures as this could lead to an early secondary peak in cases, thereby rendering the lockdowns imposed as redundant. It is therefore clear that if countries relax the restrictions gradually, this should have the effect of flattening any secondary peak. This should be true for South Africa as well. In a presentation given on Monday, 13 April 2020, Professor Salim S. Abdool Karim, who is the Chairman of the Ministerial Advisory Group on COVID-19, made it clear that South Africa needs to adopt a systematic approach to keeping COVID-19 infection rates low and that lockdown restrictions will be eased gradually.

Impact on Employers after the lockdown

If we look to our current legislation we will see that the Occupational Health and Safety Act 85 of 1993, as amended, (“the OHSA”), places a duty on the employer to ‘take such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees’. In a post-lockdown era, this could include continuing to enforce social distancing measures within the workplace, requiring some employees to work from home until the threat is mitigated or eradicated and/or imposing certain travel restrictions to ensure the safety of its employees beyond the working area.

It is thus important for employers to also adopt a gradual/cautious approach to lifting the restrictions imposed in order to ensure the safety and health of its employees in a post-lockdown era. In this regard, employers should be assessing different ways in which to adapt the workplace to suit these unique circumstances in which we find ourselves in. It will not be ‘business as usual’ when we return to work after the lockdown, as such employers must be willing to adapt to the everchanging circumstances to ensure the viability of their organisations.

It is inevitable that the lockdown will have substantial implications on the economy. These implications on the economy will in certain circumstances result in a negative impact on business operations and most notably the income and cash flow of a business. As such, employers should be taking the necessary steps in order to mitigate some of the possible economic challenges that await us in a post-lockdown era.

In order to assist businesses, the National Executive has issued a Directive called COVID-19 Temporary Employee / Employer Relief Scheme (C19 TERS), 2020; in order to assist businesses who have as a result of the pandemic had to close their operations for a period of three months or less and who are suffering financial distress as a result. This scheme will hopefully provide some assistance to employers who are unable to satisfy their wage bills during the temporary closure of their business. Employers should apply for this relief before considering retrenching staff during this period and in the immediate post-lockdown period.

Further alternatives to retrenchments for employers to consider in a post-lockdown era, subject to consultations with employees, could also include requiring employees to take annual leave or unpaid leave should these options not have been utilised during the lockdown. Reducing working time until the organisation gains financial stability, implementing pay-cuts to ease the financial burden and placing a moratorium on increases, 13th cheques, promotions and incentive bonus payments.

Impact on Employees after the lockdown

The OHSA also places an obligation on employees. Section 14 (a) of the OHSA requires employees to ‘take reasonable care for the health and safety of himself and of other persons who may be affected by [their] acts or omissions’. Such steps in a post-lockdown environment could include, adhering to the social distancing measures imposed by one’s organisation and/or working from home when requested to do so or when one suspects they may have contracted the virus.

It is also important for employees to bear in mind that it will not be ‘business as usual’ upon our return to work after the lockdown. Employees should thus expect changes to the working environment which they will have to adhere to for the safety of all employees within the organisation.

Employees can expect that there will be disruptions to the normal course of events which will directly or indirectly affect their working environment. Such disruptions could include changes to the public transport industry, which could force employees to consider alternative means of transport for the period following the lockdown and until the restrictions are completely lifted.

As the extent of the economic devastation is yet to be known, employees should spend some time reviewing their current financial situations, which may have been made worse by the lockdown. In this regard, employees are encouraged to manage their expenses during this period and to engage with the relevant professionals on how to manage their debt levels during this time, i.e. a debt counsellor. Employees are further encouraged to communicate with their financial institutions in order to discuss their payment arrangements should the need arise.

Final Considerations

As we approach the end of the lockdown, we must bear in mind the importance of physical distancing measures and we must be careful in our approach to lifting the measures imposed after the lockdown in order to avoid subsequent waves of infections when we return to our way of life.

In the interim, while the lockdown persists, it would be prudent for both employer and employee to engage in meaningful discussions regarding the way forward for the organisation and individual alike. In this regard, companies should be working with their teams to build scenarios for the post-lockdown environment, assessing a variety of situations, such as if the lockdown is extended, if post-lockdown restrictions are imposed, a weak economy upon return or for conservative consumer behaviour to name but a few. This will ensure that businesses will be ready for any different scenario they may face due to the existence of the virus.

It is clear that the coronavirus has ushered in unprecedented times for the entire human race. It is thus unclear when we will overcome this adversity, but we can be certain of two facts. Firstly, a different world awaits us all and it will be our ability to adapt and implement innovative techniques that will ensure our survival, and secondly, this too shall pass. Stay safe fellow South Africans and the world at large.

Written by Mzamo Danana and Gael Barrable
of Cowan-Harper-Madikizela Attorneys

MZAMO_DANANA CHM Legal Attorneys