On 1 June 2020, to the economic relief of many, the national lockdown alert level dropped from level 4 to level 3. In doing so, many persons who had previously been restricted from working were allowed to return to work, including domestic workers.

The reintroduction of domestic workers to the workplace has come as a relief both to domestic workers as well as to many employers who rely on the important roles they fulfil in their households.

In some instances, employers who could afford to pay their domestic workers under level 4 and 5 of lockdown will continue to do so under level 3, whether they are required to come in to work or not.  Unfortunately, for some domestic workers, on account of the financial constraints also felt by their employers this may simply not have been possible.

So, taking into account the above, what requirements must an employer comply with if they do ask their domestic worker to return to work?  If you aren’t able to afford to pay your domestic worker as a result of the current COVID-19 measures, what can and should you do?  If you have failed to register your domestic worker for UIF, will they still be allowed to claim benefits?

We deal with the answers to these questions below, so keep reading!

I require my domestic worker to return to work.  What now?

At this stage, no directives specific to the return to work of domestic workers have yet been announced. However, it would appear that all employers of domestic workers should at least adhere to the requirements set out clause 46 of the Directions published by the Department of Labour on 4 June 2020.  For the Gazetted Directions see:

https://www.gov.za/sites/default/files/gcis_document/202006/43400rg11128gon639.pdf

In terms of these Directions all employers should, as a minimum, take the following steps:

1. develop a basic plan for the worker’s return to work, taking into account factors such as the domestic worker’s age (ie. if over 60 years of age) and/or if he/she has any co-morbidities. This plan may include agreeing to an adjustment of working hours to avoid the domestic worker taking public transport during peak times or arranging private transport;
2. make the necessary arrangements to ensure that your domestic worker will have adequate space in which to work – ie. that a 1,5m distance may be maintained between your domestic worker and any person in your household;
3. undertake the necessary symptom screening of both the domestic worker as well as the employer and all members of the employer’s household. To this effect, it should be ascertained whether any of the aforesaid persons are suffering from any symptoms of COVID-19.  If either the domestic worker or the employer or any member of the employer’s household suffers from these symptoms, the domestic worker should not be required to come in to work.  For further information on the measures to be followed see clause 25 of the Directions mentioned above as well as the handy screening checklist at the end of this article;
4. should either party require clarity on the implementation of the necessary precautionary measures or have a concern regarding possible infection, the employer should contact the COVID-19 hotline and both parties should act in accordance with any instructions provided;
5. provide cloth masks to the domestic worker or require the domestic worker to wear some form of cloth covering over his/her nose and mouth while at work;
6. provide the domestic worker with sufficient hand sanitizer and access to soap and clean water for the purpose of sanitizing their hands and surroundings; and
7. ensure that while at work the domestic worker washes his/her hands with soap and sanitizes his/her hands regularly.

The employer should also provide their domestic worker with a permit should it be requested that same be presented on such worker’s travels to/from the workplace.  We include a draft version of such a permit at the end of this article.

I am worried about the financial impact of the lockdown on my Domestic Worker.  Tell me more about UIF.

In terms of the Unemployment Insurance Contributions Act, which applies to all employers and employees (unless the employee works less than 24 hours a month for a particular employer), both employers and employees must contribute to the Unemployment Insurance Fund (UIF). The Fund was established to protect employees from the harmful social and economic effects of unemployment.

Domestic workers are some of the most vulnerable work seekers in South Africa and must accordingly be protected from the harms of unemployment. The contributions by the employer are also relatively low at 1 per cent of the remuneration payable (another 1 per cent is paid by the domestic worker, but many employers choose to pay this on the domestic worker’s behalf as well).

It is important to note that domestic workers are often employed by more than one employer. Even if only one employment of the domestic worker is terminated, the domestic worker is entitled to benefits in terms of the Act. However, the employee can only claim UIF benefits if the employment was terminated by the employer or a fixed-term contract ended, the employee was unfairly dismissed, the employer becomes insolvent, or, in the case of a domestic worker, if the employer dies.

Not registering a domestic worker for UIF can have dire consequences for an employer: the employer will be liable for all outstanding UIF contributions (including those of the domestic worker), on which outstanding contributions interest is calculated, and the employer may have a penalty of 10% imposed on the unpaid amount.

The process of registering a South African domestic worker is quite straight-forward, but not so simple for a foreign domestic worker. Regardless of the domestic worker’s nationality, they must all be registered in order to be protected.

Does the Temporary Employer/Employee Relief Scheme (TERS) apply to Domestic Workers?  What if my Domestic Worker is not registered with the UIF?

At the moment, while South Africa is facing the challenges of COVID-19, many employers are facing reduced income and are unable to pay the full salary of their employees, it at all. While many employees are still employed, albeit, with reduced hours or even temporarily laid off, countless employees are facing the effects of unemployment and can benefit from the Temporary Employer/Employee Relief Scheme (TERS).

To benefit from TERS, the employer must apply by sending an email to covid19ters@labour.gov.za. An automatic response will outline the procedure and list the required documents and information. It is best to have all the information at hand, including the details of the employer and the employee(s), proof of remuneration of the employee(s) of the past three months, and confirmation of banking details.

The Department of Labour makes a useful step-by-step guide available at:

http://www.labour.gov.za/DocumentCenter/Publications/Unemployment%20Insurance%20Fund/COVID%2019%20TERS%20SOLUTION%20USER%20GUIDE.pdf

Initially, employees could only benefit from TERS if they were registered with and were contributors to the UIF. However, it quickly became apparent that many employers were not complying with the UIF Act or not applying for the benefits on behalf of their employees. Many employees were accordingly either not earning an income, or earning a reduced income, yet were unable to benefit from TERS.

On 25 May 2020, the 25 March 2020 Directive was amended to allow for employees to benefit from TERS even if they are not registered for UIF due to circumstances beyond their control.

Need more advice?  Contact us!

It is important that going forward every employer and employee plays their part in stopping the spread of the virus by adhering to those Regulations and Directions in force at any given time.

COVID-19 is also a very real example that demonstrates how important it is to contribute to the UIF, and highlighted how vulnerable people can be if they unexpectedly lose their income.

While the 25 May 2020 amendment has temporarily resolved non-compliance with the Act, it is crucially important to be registered with and to contribute to the fund.

For assistance on all aspects of your employment relationship between employer and domestic worker, including those stemming from the current Regulations in place, please contact Lili von Geyso on lvongeyso@bissets.com or Amy van Dyk on avandyk@bissets.com.

Written by:
Lili von Geyso – Senior Associate
Amy van Dyk – Associate

Switchboard:   021-441 9800
Website:  www.bissets.com
Bissets WhatsApp:  072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professional.

COVID-19 SCREENING CHECKLIST:

Employee Name:  ……………………………………………………….

Date:  …………………………………………………………………………..

Time:  ………………………………………………………………………….

Temperature:  …………………………………………………………….

Employee Signature:  ………………………………………………..

CONFIRMATION OF EMPLOYMENT / PERMIT TO TRAVEL TO PERFORM WORK AS A DOMESTIC WORKER:

I, being the employer with the below-mentioned details,

Hereby certify that the following individual is in my employ for the purposes of undertaking the work of a Domestic Worker at my abovementioned address and that accordingly he/she is required to travel between the abovementioned address and the address at which he/she resides:

SIGNED AT ____________ on this the _____ day of ______________ 2020.

______________________________

EMPLOYER SIGNATURE