Case Law Emanating from COVID-19 in the Employment Space August 2020

By JONATHAN GOLDBERG AND GRANT WILKINSON, Published in COVID-19 Employment

Since the beginning of the COVID-19 lockdown, there have been far more Gazettes issued than during any other period in our democratic history. One of the pieces of legislation that has arrested the attention of all South Africans is the Disaster Management Act (57 of 2002) owing to the many revisions that have been issued to the Act's guidelines.

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Government has faced a total of 116 legal challenges against various aspects of the lockdown regulations. Some of these have been settled out of court while others are still pending. These cases have included challenges to the rationality of the ban on cigarettes, the re-opening of schools, the prohibition of personal care services and the use of B-BBEE criteria in the distribution of relief funds. Government is defending the legal opposition to the banning of cigarettes and has launched an appeal against a judgment that declares level 4 and level 3 regulations unconstitutional. Of these 116 cases, 84 have been finalised and 32 are still pending.

There is certain to be more litigation flowing from these regulations. At the time of writing this article, one such case, which deals with the interpretation and application of the Disaster Management Regulations, is AfriForum v The Minister of Cooperative Governance and Traditional Affairs (22358/2020) [2020] ZAGPPHC. A number of interesting principles flow from this matter, which are relevant to employers in the post COVID-19 reality.

Facts of the case

South Africans returning from neighbouring countries were taken to the Zithabeseni quarantine camp, near Groblersdal, after they had already self-isolated in Mozambique on the advice of the South African Department of International Relations and Cooperation in Mozambique.

They were informed that they would be at the camp for 14 days and were refused the option of self-isolation at their homes or being tested at their own cost. The conditions at the camp were appalling.

Many residents at the camp were only tested after eight days. When AfriForum arranged for a private medical team to test the remaining people in the camp, the private medical personnel were not allowed access. The South African Police Services were deployed to make sure that the team did not return.

The High Court ruled that the camp was to be closed immediately and clarified the requirements for self-isolation in the event of a suspected COVID-19 infection.

"1.1 A person who has been confirmed, as a clinical case or as a laboratory confirmed case as having contracted Covid-19, or who has been in contact with a person who is a carrier of Covid-19, is only required to be quarantined or isolated at a state facility, or other designated quarantine site when that person is unable to self-quarantine or self-isolate or refuses to do so or violates the self-quarantine or self-isolation rules."

Principles to be learned from the case and how they apply to the workplace

If an employer has a confirmed or suspected case of COVID-19 in the workplace, the affected employees need to be quarantined in a state facility or other designated quarantine site only if they are unable to self-quarantine or self-isolate. If anyone is found to violate self-quarantine regulations, they will be remanded to a state facility. Thus, a state facility is not mandatory.

There is also confusion in the marketplace when a person at the workplace, office, factory or retail establishment tests positive for COVID-19. In such instances, there is no need to evacuate everyone, unless the incident assessment requires it for purposes of decontamination and, even then, it can be done relatively quickly. The clear issue is that you need to trace and monitor those who have been around the individual concerned.

As a general rule, however, if the environment is low-risk, there is a metre-and-a-half space between each employee and proper PPE protection, there should not be high-risk exposure in the work place. Employers will not, therefore, require employees to self-isolate and/or quarantine. It is only the high-risk cases that need self-isolation or quarantine.

At the time of writing, the state of disaster had been extended to August 15, with further extensions possible as the peak of infections could reach a million by November. Inevitable ongoing litigation, in the vein already mentioned, will result in a clearer direction being followed.

Goldberg is CEO and Wilkinson an Executive of Global Business Solutions.