Infectious diseases and the workplace

Employers – including HOAs – must provide a safe workplace, even if that means insisting on disease tests for employees.

Health risks in estates

During the early stages of the COVID-19 outbreak, cruise ships turned into living, floating laboratories for scientists studying the disease. With their close confines and high proportions of older people (who tend to be more vulnerable to the novel coronavirus), combined with their lack of access to the outside world, cruise ships were – tragically, in some cases – the perfect incubator.

You could say the same about some residential estates. Retirement villages especially share many of the aspects of a cruise ship, and just one positive case of a contagious disease could quickly lead to an outbreak among most of the residents.

The COVID-19 lockdown caused many HOAs and BCs to ask the unspeakable question: ‘Should they make COVID-19 testing mandatory for everybody who enters the property – if not for guests, then certainly for staff, and others who work at the estate?’

Disease testing and labour law

Here’s where it’s worth brushing up on some Labour Law 101. Employers are obliged, in terms of Section 8 of the Occupational Health and Safety Act (OHSA), to take reasonable measures to provide and maintain a safe working environment that does not pose a risk to the health of its employees. This obligation also prohibits employers from permitting a worker to enter a workplace where their health and safety would be at risk. The OHSA also requires employers to take precautionary measures to protect the workplace and its employees from the spread of communicable diseases, which would obviously include COVID-19 and (perhaps not as obviously) a raft of other serious illnesses.

This means that employers can prevent an employee who’s been infected (or who might be infected) with COVID-19 from entering the workplace; and the employer can require the employee to disclose their international travels and impose a post-travel self-quarantine. But what does this mean for HOAs? Can community schemes enforce mandatory COVID-19 testing for any on-site workers?

‘As the position reflects now, South Africa’s information regulator has said that employers can force employees to be tested for the COVID-19 virus,’ attorney Marina Constas, a director of BBM Law, said during the first phase of the outbreak. ‘An employee can be barred from the workplace if they refuse to be tested. Due to the fact that COVID-19 is a notifiable disease in South Africa, a positive test should see data automatically forwarded to health authorities. This could be something for HOAs to include in their rules moving forward.’

Notifiable diseases

That point about notifiable diseases is important, especially given South Africa’s troubled history with stigmas and prejudices around people with HIV/Aids and diseases like tuberculosis (TB).

The Department of Health has a long, categorised list of notifiable diseases, ranging from the likes of cholera, measles, plague and smallpox (all Category 1), through leprosy, tetanus and four kinds of tuberculosis (Category 2), and on to things like dengue fever and West Nile virus (Category 3).

COVID-19 would fall under Category 1’s respiratory disease caused by a novel respiratory pathogen, which means healthcare providers and laboratories have to notify the Department of Health within 24 hours of a reported diagnosis.

HIV/Aids is not on the list, and it remains illegal for employers to compel their workers to undertake an HIV test. (HIV testing must always be voluntary.)

The rules around TB are more complex, and provide a good model for COVID-19. Because patients with active TB might be infectious, they are legally allowed to stop work during the initial phases of their treatment, and return to work when they’re no longer infectious (usually about two weeks). Then, once the TB patient returns to work, they must be allowed to take time off work to visit their healthcare providers.

Dealing with employees with infectious diseases

So what should HOAs do if an employee is infected with the novel coronavirus? First of all, you can’t fire them. The Labour Relations Act gives employees the right not to be unfairly dismissed, or subjected to unfair labour practices. So, although an employer is allowed to dismiss an employee on the basis of incapacity, the employer also has to investigate all possible alternatives for the ill or injured employee.

The general legal opinion is that, if an employee were to be dismissed because they are infected with a disease like severe acute respiratory syndrome (SARS), Middle East respiratory syndrome (MERS), TB or COVID-19, it would likely be seen as an unfair dismissal. After all, the employer would be obliged to find other ways to accommodate that employee – and because COVID-19, for example, appears to have a relatively short incubation and infectious period, you could argue that a period of isolation and self-quarantine is more reasonable than firing someone just because they have the virus.

So no: you can’t fire an employee who has COVID-19, but if you reasonably suspect that an employee might have the virus, you can ask them to take a medical test. The employee can refuse – but then you can also refuse to let them into the workplace.

Providing a safe workplace

That’s a key point in all of this, and it comes back to that Section 8 of the OHSA. Employers are obliged to provide a safe workplace for all employees, so if there’s a good reason to believe one of them has a notifiable disease, such as COVID-19 or TB, as an employer you can – and should – refuse them entry to the workplace.

In an enclosed environment like a residential estate (which, in some ways, is like a very big, landlocked cruise ship), that responsibility is especially important.

This content is for information purposes only, and should not be regarded as legal advice.