The startling news that an official case of Coronavirus (COVID-19) had been confirmed in South Africa came as a shock to most. Since then, the number of confirmed cases has increased and appears to be on the increase daily. As a consequence of the now-called pandemic, employers are finding themselves in unchartered territory in terms of the manner in which they are to apply the legislation pertaining to sick leave and annual leave entitlements of employees, especially relating to employees that are placed in compulsory quarantine or employees who voluntarily place themselves in quarantine.
In order to navigate the situation going forward, employers must be privy to the relevant legislation which would have an effect in such scenarios. Such legislation would include the Unemployment Insurance Fund (UIF) Act, Basic Conditions of Employment Act and the Occupational Health and Safety Act. The two most important pieces of legislation for purposes of this article, and their relevance, in the current situation, are:
- The Basic Conditions of Employment Act (BCEA). Section 22 thereof stipulates the period to which an employee is entitled to sick leave. Generally, an employee is entitled to 30 days sick leave during a 36 month or three-year cycle, following commencement of employment. Section 23 of the BCEA stipulates that should the employee be absent for a period longer than two consecutive days or be absent on more than two occasions during an eight-week period, the employer is not obliged to pay that employee their sick leave benefit unless that employee provides a valid medical certificate citing the reason for the incapacity during that period. Such a medical certificate must be issued and signed by a registered medical practitioner.
- The Occupational Health and Safety Act clearly dictates to employers that they need to ensure a working environment that is healthy and safe for all employees. In this regard, the employer is therefore obligated to ensure that it always looks after its employees’ well-being whilst the employees are at the workplace.
Due to the nature of COVID-19, chances are highly likely that employees who contract the virus will be placed into compulsory quarantine. Some employees, for fear of contracting the virus, may elect to voluntarily quarantine themselves. Is the employee who chooses to voluntarily quarantine themself then entitled to their sick leave benefit in such instances? The answer to this is outlined below:
- If an employee is placed in compulsory quarantine and produces a valid medical certificate to that effect, the employer must deduct such period of absence from the employee’s current sick leave cycle and also pay the employee the equivalent of the remuneration they would have received during this period. Should the employee have exhausted their sick leave allotment at the time of being placed in quarantine then, the employer may deduct this period either from the employee’s annual leave or may choose to classify the absence as unpaid leave. In this regard, the employee may claim remuneration in terms of S20 of the Unemployment Insurance Fund (UIF) Act.
- If an employee chooses to voluntarily quarantine themselves by staying at home to avoid contracting the virus, then this period of absence will not qualify as sick leave. Such period of absence will be taken out of the employees’ normal leave cycle and if that employee no longer has any leave entitlement, then this period may be taken as unpaid leave.
Should an employer reduce working hours as a consequence of the COVID-19 virus, then employees are entitled, as per Section 12 of the UIF Act to claim remuneration from the Fund if the reduction of hours or “unemployment” lasts longer than fourteen (14) days.
An instance may arise whereby an employer seeks an employee to be placed in quarantine due to the employee having been in contact with an individual who has been diagnosed with the virus or perhaps the employee has recently travelled overseas to an affected area or perhaps the employee presents with symptoms similar to those associated with the COVID-19. During such absence imposed by the employer, should the employee be diagnosed with the virus and the employee presents a valid medical certificate to that effect, the employer may treat such absence as sick leave. Due to the operational requirements of most businesses, thought must be had by the employer to perhaps assign tasks to the employee which they can then carry out at home or at their chosen site of quarantine should the employer deem it necessary for their employees to be quarantined. If the employees render services from home during this period, they will be entitled to their normal remuneration, and no leave may be deducted.
Should an unlikely scenario arise whereby The State declares that schools and businesses are to be closed because of the virus, then such an instruction would be through no fault of the employer. After receiving such instruction, employers should consult with their employees and discuss an appropriate way to deal with the shut-down. If the operational requirements of the employer permits, then perhaps the time during which the business is closed can be seen as annual leave. Or, if the employer implements a system of working from home, then this work will be with pay.
What is prudent to note from the information given is that it is of utmost importance for employers to always ensure that the work environment is hygienic and healthy. Furthermore, employers should always seek professional advice before acting unilaterally in matters pertaining to leave as this may manifest into unnecessary claims by aggrieved employees for outstanding leave monies due.
Article by: Daniel van der Merwe
Provincial Manager – Port Elizabeth