“I’ve been working from home since lockdown started, until recently when I started going in half-day on an arrangement with my employer and getting someone to look after my kids while I’m away. This morning my employer called me to say if I do not return full-time on Monday morning I will not be paid. Don’t the level 3 regulations say that where employees can work from home, they should? I honestly can't afford a full-time teacher at the house and all the school fees I still need to pay. What can I do?” Scorpion Legal Protection discusses.
This is a tricky situation. The regulations have forced parents to keep their children at home, so it’s understandable that the employee should request to work from home, since paying someone to look after her children is a financial burden she cannot afford at this time. President Ramaphosa announced that from 1 June 2020 most people will be going back to work, and he urged employers to allow those who have been working from home and those with underlying health issues to continue working from home. However, there is no specific legislation that enforces work from home policies, and unfortunately, if this is not specified in your employment contract, then it is the decision of the employer whether or not to allow employees to work from home.
An employer’s consent is required to work from home, and it should not unreasonably be withheld. However, employees remain obligated to go to work unless instructed otherwise by their employers. Employees who refuse to go to work must have a valid reason for their absence, for example, that they are at a higher risk for contracting the virus due to underlying medical conditions or that the employer has not fulfilled their responsibility in terms of the Occupational Health and Safety Act 85 of 1993 ("OHSA") to ensure a working environment that is safe and without risk to the health of its employees as far as reasonably practical.
In terms of the reciprocal employer-employee relationship defined by your employment contract, an employee is obliged to render his or her services to an employer; and an employer is, in turn, obliged to remunerate an employee for such services. If an employee refuses to render his or her services to the employer, an employer may also refuse to pay the employee their salary. Since the existing legislation does not expressly provide a legal backing for employees to insist on working from home, the best advice we can give is to approach your employer or HR department with a plan. Bring an outline of how working from home won't impact productivity. Describe what your setup will be and how it allows you to work without being in the workplace. If you refuse to go into the office and report for work, the employer is legally entitled to take disciplinary steps against you.
Tips:
- Working from home must be by agreement between employer and employee.
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* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.