President Cyril Ramaphosa announced a nationwide lockdown for 21 days, during this period all employees, except for a few categories, will have to stay at home. This raises various questions regarding an employee’s sick leave entitlement during lockdown.


The Department of Employment and Labour issued a short Directive on COVID-19 regarding the implications on the Basic Conditions of Employment Act (“BCEA”) leave provision. The Directive, unfortunately, does not address the issue of sick leave entitlement, other than “All employees in South Africa, as a condition of their employment, are entitled to leave provisions as set out in the Basic Conditions of Employment Act”. Accordingly, the BCEA would still regulate all employees leave entitlement during lockdown.


A. The sick leave entitlement in accordance with the BCEA:

The BCEA regulates an employee’s basic sick leave entitlement.  Each permanent employee is entitled to a “sick leave cycle” for every 36 months’ employment with the same employer. During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a six weeks period.  An employee who works 5 days a week, this equates to 30 days’ sick leave and for an employee who works 6 days a week, will receive 36 days’ sick leave per 36 months of employment.


An employee is entitled to paid sick leave when the employee has not been absent from work for more than two consecutive days or on more than two occasions during an eight week period and, on request by the employer produces a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury. The employer is further not required to pay an employee for taking sick leave when their sick leave entitlement has been exhausted.


B. How does the lockdown period affect an employee’s sick leave entitlement?

In short, an employee’s sick leave entitlement remains the same throughout the lockdown period, and the rules and obligations for both employer and employee remain the same.


Please note this does not apply to companies where the employer has to institute a temporary shutdown/lay off of employees.


Where the employer is able to pay his employees, and the employee falls ill whilst at home or at work (as part of essential services), and the illness has nothing to do with the Corona Virus, the employee is entitled to paid sick leave benefit, considering the employee still has to comply with all the above-mentioned requirements in accordance with the BCEA. It is, however (especially now more than ever), imperative that the employee notifies his employer when he is ill either telephonically, via SMS/Whatsapp, e-mail, etc.


To qualify for paid sick leave, an employee is still responsible to provide the employer with a valid medical certificate, issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council. If the employee is not able to send a copy of the medical certificate, the employee should keep the medical certificate in a safe place and give it to his employer upon returning to work.


Mr Michael Bagraim MP, a labour law expert, stated during the Democratic Alliance’s live stream on 31 March 2020, that employers should consider being a bit more lenient during this time when asking for proof that an employee indeed visited a Doctor and obtain a medical certificate, as employees might struggle to travel to and from Doctor’s rooms, Clinics, Hospitals etc. and might even consult telephonically. Some employees might only have access to traditional healers during this time, and an employer should perhaps consider accepting a traditional healer’s certificate during lockdown, even if the traditional healer is not registered.


Accordingly, an employer should request a medical certificate from the employees where applicable in accordance with the BCEA, however, be mindful of the fact that employees might have severe difficulty obtaining same and employers should consider being more lenient during this time. An employer could always contact the medical doctor or traditional healer when the employer suspects abuse of sick leave.


C. When does an employee qualify for the illness benefit in accordance with Covid19 TERS:

The Minister of Employment and Labour, Thembelani Waltermade Nxesi, issued a Directive in the Government Gazette on 26 March 2020, in terms of regulation 10(8) issued by the Minister of Cooperative Governance and Traditional Affairs, in terms of Section 27 (2) of the Disaster Management act, 2002 (act no. 57 of 2002). The Directive was issued in order to implement steps in respect of the administration of the COVID-19 through the Covid19 TERS (Temporary Employee/Employer Relieve Scheme), in order to prevent the escalation of the COVID-19 infections funded through the National Disaster Benefit.


Section 4 of the Directive deals with the Illness benefit in accordance with Covid19 TERS, which states that where an employee is in quarantine for 14 days due to COVID-19 pandemic, the employee shall qualify for the illness benefit.


In order to qualify for the Illness benefit, both employer and employee must submit confirmation, together with proof that the employee is indeed in an agreed pre-cautionary self-quarantine for 14 days. The Directive state that confirmation letters from both the employer and employee are sufficient proof. An employee is only requested to submit a medical certificate from a medical practitioner together with continuation form of payment when the employee is quarantined from MORE than 14 days.


It is important to note that according to Regulation 5.3 of the Directive, an employee is not entitled to any benefit in accordance with COVID-19 TERS, if the employee is being paid by his/her employer, during the Nationwide lockdown.