Employee’s refusal to work during COVID-19

On 28 September 2020, the Minister of Employment and Labour issued the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces which was gazetted on 01 October 2020 (“the Directions”).

Amongst other workplace issues which may occur during Covid-19, the Directions deal with the instance where an employee refuses to work due to possible exposure of the employee to the Covid-19.

Sub-direction 14(1) states that an employee may refuse to perform any work function if “circumstances arise which, with reasonable justification, appear to that employee to pose an imminent and serious risk of their exposure to Covid-19”. The employee is required to notify their employer as soon as reasonably possible of their refusal to perform the work function, as well as their reasons for their refusal.

The Directions provide a process to be followed by the employer in the instance when an employee exercises their rights conferred upon them in terms of sub-direction 14(1). In essence, the employer must endeavour to resolve the issue, failing which the employer is required to notify an inspector within 24 (twenty four) hours and advise the employee (and all relevant parties) that such an inspector has been notified.

Should the employer not make the notification to the inspector, the employee may do so. An inspector may then, in terms of section 30 of the Occupational Health and Safety Act, issue a prohibition notice if, in the inspector’s opinion, there are any threats or likely threats to the health and safety of any person.

Should you as an employee, or an employer, require assistance in ensuring that your workplace is compliant with the Directives, contact Harris Billings Attorneys  and we will gladly assist you and provide you with the legal guidance necessary.

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