• In this uncommon time, mental illnesses such as anxiety, stress, loneliness, depression, frustration, and self-harm can be more prevalent and can be exacerbated by COVID-19.
• Although there are several self-care guidelines on emotional well-being, such mental illnesses may implicate the employer.
The ‘Directive on Occupational Health and Safety Measures in Workplaces’ was published in the Government Gazette on 29 April 2020. Although this directive mainly aims to provide guidelines to employers to protect the physical health and safety of workers (and members of the public entering such workplaces) and to prevent the spread of the virus, the mental well-being and health of workers should not be lost sight of – especially not in South Africa where one in six people suffer from some form of mental illness.
So, while the emphasis is on our physical and economic well-being, the current and future emotional well-being of employees should not be forgotten. Many employees are experiencing increased levels of anxiety and concern about the possibility of infection (in the workplace) as well as current and future job losses.
COVID-19 can aggravate mental illness.
In this uncommon time, mental illnesses such as anxiety, stress, loneliness, depression, frustration, and self-harm can be more prevalent and can be exacerbated by COVID-19. Although there are several self-care guidelines on emotional well-being, such mental illnesses may implicate the employer: on the one hand, the emotional illness can negatively impact the job ability of the employee (which can, in turn, lead to further problems such as potential dismissal due to incompetence), and on the other hand, the workplace or environment can cause or contribute to the mental illness. Where does the employer then fit into the picture?
According to the preamble to the said directive, as well as articles 8 and 9 of the Occupational Health and Safety Act, the employer (including self-employed persons) must, as far as possible, maintain a work environment that is safe and without health risks for employees or other persons affected by the same work activities. It could thus be argued that this general obligation also contains aspects of mental health.
An employer must therefore be careful that the way in which the business is conducted does not, for example, contribute to the anxiety and stress-related emotions of employers or other stakeholders. An employer should also consider and address the situation before an employee is, for instance, dismissed on the grounds of incapacity (caused by COVID-19-related mental illness).
Neglecting COVID-19 mental symptoms is potential discrimination.
Paragraph 16.4 of the directive also requires employers (with more than 10 employees) to inform their employees that they should not report for work if they experience any COVID-19 symptoms, and that they should take paid sick leave. Paragraph 23.4 stipulates that if an employee’s sick leave is exhausted, the employee can apply with the Unemployment Insurance Fund for illness benefits in terms of the ‘COVID-19 Temporary Employer Relief Scheme’.
Although the directive makes no mention of symptoms related to mental illness, and although an employer is at this stage unlikely to be found guilty of non-compliance if COVID-19 symptoms are not addressed, it is again suggested that a good argument can be made for the neglect of COVID-19-related mental symptoms amounting to possible discrimination. Therefore, it is also suggested that, if an employee is in the possession of a medical certificate to this effect, the refusal of sick leave may incur potential problems for the employer.
Don’t forget about the emotional crisis
South Africa, like the rest of the world, is experiencing a crisis on many different levels. And although the health crisis and the economic crisis (and the associated job losses) are definitely taking precedence, we perhaps need to sit back for a moment and not forget about the emotional crisis. Everyone agrees that a healthy body houses a healthy mind; everyone agrees that mental illness can have the same draconic consequences as physical illness; everyone agrees that humankind should care for one another and have each other’s interests at heart.
That being said, the following thought: although there are many different ways in which employees can take care of their own mental health during this time, employers must guard against allowing mental illness to yield to physical illness. Sir, madam … put yourself in the shoes of your insecure and worried employee for a moment and try to accommodate where you can. Investigate all the alternatives before simply laying off people. Even an ordinary SMS message asking about the (emotional) well-being of your employee could make a huge difference.
Conradie is a lecturer in the Department of Mercantile Law and Programme Director in the Centre for Labour Law.