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  • Writer's pictureThe Kaplan Team

LET'S TALK Labour Law & COVID-19

Updated: Mar 31, 2020

As the number of cases of COVID-19 in South Africa increases and with the President declaring the COVID-19 pandemic a national disaster, it is necessary to look at what the implications of both the spread of this disease and the declaration of it as a national disaster are for the South African workforce.

A national disaster

A national disaster, for present purposes, is an occurrence which causes or threatens to cause death, injury or disease or disruption of the life of a community, the magnitude of which exceeds the ability of those affected to cope using their own resources.

Cabinet manages the disaster by the issuing of directions and regulations designed to assist and protect the public; provide relief to the public; protect property; prevent or combat disruption; or deal with the destructive and other effects of the disaster.

Presidential statement – 15 March 2020

The key elements of the disaster management plan which may be extracted from the President’s statement are as follows:

A travel ban on foreign nationals from or who have in the past 20 days visited identified high risk countries;

An advisory that South African citizens do not travel to identified high risk countries;

Testing, self-isolation and quarantining for South African Citizens returning from high risk countries;

High intensity screening for travellers from identified medium risk countries;

Increased screening and testing at the international airports;

Closure of several land and sea ports;

No non-essential out of country travel for government;

Non-essential domestic travel is discouraged, particularly by air, rail, bus and taxi;

Gatherings of more than a 100 people are prohibited;

Closure of schools from 18 March until after the Easter holidays;

Visits to correctional centres are suspended for 30 days;

and Request that all intensify hygiene control.

Whilst necessary, undoubtedly these measures will have a massive impact on the economy, a fact recognised by the Presidency.

Sick leave

In terms of section 22 of the Basic Conditions of Employment Act (BCEA), an employee is entitled to paid sick leave days equivalent to the days that the employee would ordinarily work in a six week period in each cycle of 36 months with the same employer, with the first cycle commencing on the employee’s first day of employment (“statutory sick leave”). The only limitation is that during the employee’s first six months of employment this may be reduced to one day’s paid sick leave for every twenty six days worked.

In terms of section 23 of the BCEA, an employee must submit a medical certificate for paid sick leave where they are absent on account of illness for more than two consecutive days or on more than two occasions in an eight week period, regardless of the duration of those absences.

Some organisations may provide for additional sick leave over and above the statutory minimum (“contractual sick leave”).

My employee has contracted COVID-19.

The employee is likely to present you with a medical certificate to confirm this in which case the employee’s absence ought to be treated as sick leave.

If the employee has exhausted their sick leave or is likely to exhaust their sick leave during their absence on account of COVID-19 there is no obligation on you to pay more than the statutory or contractual sick leave.

Options available to employees who have or who will exhaust their statutory leave are:

Reduce their payment for sick leave days to 75 percent of what they would have been entitled to with a commensurate increase in the number of paid sick leave days they are entitled to;

Utilise any accumulated annual leave;

Unpaid leave;

or Claim unemployment benefits provided the period of illness is seven days or more and the employee otherwise qualifies.

My employee contracted COVID-19 while at work or on a work-related trip. Must this be reported as an injury on duty?

The Compensation for Occupational Injuries and Diseases Act (COIDA) governs all accidents on duty, which includes the contracting of an illness.

If you become aware that an employee has contracted COVID-19, whilst at work or performing their work or of an allegation that this is so then it must be reported to the Compensation Commissioner within seven days irrespective of the fact that you may be of the opinion that the employee did not contract COVID-19 in the course of their employment.

Provided the employee is incapacitated for more than three days the employee may be entitled to compensation from the compensation fund.

You have an obligation to pay the employee 75% of their earnings for any absence on account of an accident on duty for up to the first three months from date of the employee contracting the illness. Such compensation paid by you ought to be repaid to you by the compensation fund.

My employee has been quarantined because they have been in contact with someone with COVID-19. They aren’t actually sick yet so how do I deal with his/her leave application?

If an employee has been quarantined, this may be done on the recommendation of a medical practitioner. If so, there may be a medical certificate stating he/she is not fit for duty in which case sick leave, as discussed above, applies.

If a quarantined employee does not have a valid medical certificate, unpaid leave may be granted unless there is an agreement that the employee’s annual leave may be utilised.

Caution should be exercised on both fronts. You should be cautious to grant paid leave in the absence of a medical certificate as it may be open to abuse by employees. You should also be cautious about compelling employees to report for work, by regarding their absence as unpaid leave or otherwise, where they may be contagious.

Each incident should be carefully examined and decided on its own merits. Given the oversight on cases of COVID-19 it is highly unlikely that an employee would not be able to provide some proof of the need to quarantine.

My employee has self-quarantined because she came into contact with someone with COVID-19. Will she qualify for sick leave?

If the self-quarantine falls within an instance where the employee is actually ill or exhibiting symptoms or where the employee has a medical certificate then the employee’s sick leave may be utilised.

However, if the employee who is not exhibiting symptoms and has self-quarantined, does not obtain a valid medical certificate, unpaid leave may be utilised.

Again caution must be exercised on both fronts.

My employee has self-quarantined and cannot produce a medical certificate. I don’t believe there is a valid reason for his/her self-quarantine. What are my options?

If an employee cannot produce a valid medical certificate upon request, an employee cannot stay away from work without permission from their employer, even if they intend taking unpaid leave.

You would be entitled to discipline the employee for any misconduct which they may have committed both in being absent from work and for the reasons they have advanced for being absent.

Each incident must be investigated and caution should be exercised.

My employee appears to be displaying flu-like symptoms but is still reporting for work. Can I send him/her to be tested by the company doctor? If she refuses what recourse do I have?

Secton 7 of the Employment Equity Act states that medical testing is prohibited unless allowed by legislation or if it is justifiable in light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job.

Due to the risks associated with COVID-19 and the employer’s duty to protect its workforce, it will be justifiable to require an employee to submit to medical testing, provided the criteria for selecting employees to be tested is rational and fair. If the employee refuses you may exclude the employee from the workplace and discipline the employee for their refusal to submit to medical testing.

For the safety of my staff and/or due to the high number of sick employees I have decided to close the company for a period to prevent the spread of the disease. Must I pay these employees for the days the company is closed?

Employees render services to the employer at an agreed rate in terms of their employment contract. If the employee tenders his or her services, however their employer tells them that they cannot report for duty, the principle of ‘no work, no pay’ will not apply and the employee is entitled to be paid in accordance with their contract of employment and their tender of services.

However, if there is a collective agreement or contractual term within the employment contract regarding the implementation of short time or lay-off due to circumstances beyond the control of the employer then you may not be obliged to pay employees during the period of closure. The requirements of the collective agreement or contract, which would normally include some form of consultation with employees must be followed. Where possible employees may be accommodated in working remotely.

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This article is not intended to constitute legal advice and is produced for information purposes only and to provide a general understanding of the legal position relating to the topic. It is recommended that advice relating to the specific circumstances of your situation be sought from our attorneys before acting upon the content of this article. This article was written at a particular point in time and accordingly may not always reflect the most recent legal developments, if any, applicable to the relevant topic. Kaplan Blumberg and its partners and/or employees, are not responsible for any consequences which may follow upon any decision taken to act upon the information provided in this article.

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