COVID-19: DOMESTIC WORKERS DURING THE LOCKDOWN IN SOUTH AFRICA
One of the hardest hit sectors of the economy during the national lockdown period, announced to run from midnight on 26 March 2020 to midnight on 16 April 2020, may be domestic workers.
They are not able to work remotely; they fall outside of the essential businesses list; and they will be required to stay at home (unless of course, they live on the premises of their employers, in which event they will be in lockdown at these premises).
Do those domestic workers who cannot work have a right to be paid during this period?
The employer’s duty to pay an employee arises from the employee’s ability and willingness to tender services. In the case of the national lockdown, these employees are not able to tender their services.
The position is different to the scenario when an employer, on the basis of the duty to ensure a safe and healthy work environment, requires employees not to be at work because there is a reasonable apprehension of possible infection at the workplace.
During the national lockdown, many domestic workers (and many others who can only perform their work at the workplace) simply cannot work.
In these circumstances, there is no legal obligation to pay the employee her/ his remuneration. The employee would have to rely on the benefits that Government intends to make available through various initiatives.
Of course, employers who can afford to do so, may decide to regard the lockdown period as a special form of leave, and continue payment; or they may pay a lockdown allowance. It would also be permissible to require the employee to they take her/ his annual leave during this time - therefore making it paid time away.
COVID-19 has indeed become a stark reality in our communities.