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When it come to the COVID-19 pandemic, employers have a legal obligation to ensure and maintain, as far as is reasonably practicable, a safe working environment for their employees that goes above and beyond the South African Health and Safety Act of 1993. That having been said, employees cannot, however, simply refuse to return to work because of the threat of transmitting COVID-19.

Should an employee refuse to return to work, the said employee must have a reasonable justification for doing so. What constitutes a reasonable justification will depend largely on the circumstances of each matter and vary from case to case.

Broadly speaking, we are of the opinion that if an employer fails to comply with the most recent Health and Safety regulations surrounding COVID-19, to provide its employees with all relevant instructions, health and safety protocols, personal protective equipment (PPE) as stipulated and necessary training, this may very well be a reasonable justification for an employee refusing to return to work.  Accordingly, employers should be careful to ensure that they comply with all the necessary regulations and directives before insisting that their employees return to work or threaten them with dismissal or legal action. 



It is our view, therefore, that employers should:

  1. Before insisting that employees return to work, conduct a risk assessment which deals with any and all potentially unsafe areas and conditions;
  2. Ensure that proper control measures are put into place, such as providing employees with the necessary  personal protective equipment (PPE) and training;
  3. Ensure that measures such as social distancing, sanitising, screening, isolation (where necessary) and any other requirements as set out in the regulations, are put into place and enforced;  
  4. Comply with all the requirements set out in the Department of Labour’s Occupational Health and Safety Regulations; and
  5. Convene health and safety committee meetings on a regular basis to monitor the above and address any issues and concerns that may be raised by employees pertaining to the risk of Covid-19 and any other potentially unsafe work practices.

For more information or should you wish to discuss what steps to take next in the event that your employer has failed to ensure a safe working environment or in the event that an employee has still failed to return to work notwithstanding your compliance with the regulations, kindly contact Anthony Spellas at SLKB.

For any information or a consultation on an urgent matter contact aps@slkb.co.za / 079 876 2334