25 March 2020 by Cliffe Dekker Hofmeyr Updated | COVID-19: The Employment Survival Guide

The COVID-19 (or “Coronavirus”) is spreading. Employers and employees have a role to play in limiting its impact

In this alert, we answer some of the most pressing questions that have been asked over the past few days.

1. What is an employee’s sick leave entitlement?

The Basic Conditions of Employment Act 75 of 1997 (BCEA) regulates sick leave entitlement. In terms of section 22 of the BCEA, the “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following an employee’s commencement of employment. 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 period of six weeks. Usually (for an employee who works five days a week) this equates to 30 days’ sick leave per 36 months of employment.

2. Must an employee be paid for sick leave?
Subject to section 23 of the BCEA, an employer must pay an employee for sick leave: a) the wage the employee would ordinarily have received for work on that day; and b) on the employee’s usual pay day.

3. When is an employer not required to pay sick leave?
In terms of section 23 of the BCEA, an employer is not required to pay an employee for sick leave if the employee has 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, does not produce 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.

4. What are the basic requirements for the medical certificate?
The medical certificate must be 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.

5. What if sick leave is exhausted?
An employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted.

6. What about “special leave”?
The Minister of Employment and Labour, Mr Thulas Nxesi, announced on 17 March 2020 that if employees must subject themselves to be self-quarantined for 14 days (or longer) such leave will be recognized as “special leave” and employees will be permitted to apply for UIF benefits which will be paid on condition that the reason for the quarantine meets the necessary requirements.*

7. Will the Department of Labour assist employers in distress?
The Minister of Employment and Labour, Mr Thulas Nxesi, announced on 17 March 2020 that a period of reprieve will be considered in order for companies not to contribute to the Unemployment Insurance Fund (UIF). He said the Employee Relief Scheme will be used to avoid workers being laid off. Companies contemplating a short term shut down must notify the Department who will dispatch a team to visit these companies to provide assistance with the processing of UIF claims.**

8. When can an employee be dismissed due to the Coronavirus?
In terms of Schedule 8: Code of Good Practice Dismissals, an employer must investigate the extent of the illness if the employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors to take into account in considering alternatives to dismissal include, the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. During this process, the ill employee should be given an opportunity to make recommendations as well. Only once all these processes have been followed and no alternative to dismissal found, may an employer consider dismissal.

9. May employers consider retrenchments due to the impact of the Coronavirus?
Section 189 of the Labour Relations Act 66 of 1995 applies if an employer contemplates dismissing one or more of its employees for reasons based on its operational requirements. “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.

A retrenchment is as a result of no fault on the part of the employee. In the circumstances, it is not an opportunity for an employer to terminate the employment of ill employees.

10. May an employer require an employee to use annual leave?
Yes, however this should not be done for periods of self-isolation or quarantine and only applies to the statutory portion of annual leave (i.e. 15 business days). This measure is also subject to the contents of the contract of employment, leave policy or any applicable collective agreement.

Statutory annual leave is regulated by the BCEA. Section 20 sets out the framework for statutory annual leave. An employer must grant statutory annual leave in accordance with an agreement between the parties. In the absence of an agreement the employer may determine the time for statutory annual leave to be taken. When an employer wishes to send employees home on statutory annual leave to keep them away from the office during a pandemic such as this, it may determine the time for them to take statutory annual leave. The employees are paid as they are on statutory annual leave.

11. May employees be required to work from home?
Yes. Working from home may be permitted. This is not always viable but could be considered in a corporate environment. Should employers consider this option, we recommend that clear guidelines be set for employees. This may include that the working environment must be safe, the employee must have a secure telephone line and Wi-Fi connection and employees should remain within travelling distance of the office.

12. As an employer, what are my obligations whilst the workplace is open?
The Occupational Health and Safety Act 85 of 1993 (OHSA), requires an employer to bring about and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. For this reason, we recommend that employers adopt contingency plans and communicate with its employees regarding the measures it will adopt in securing the workplace. This may include:

• the prohibition of handshakes or physical contact;
• limitation on meetings;
• sufficient supply of hand sanitizer; or
• requiring employees to work from home, should they feel sick in any way.
• It may also be necessary to relax the sick leave policy or to permit more flexibility in working arrangements.

On 17 March 2020, the Minister of Employment and Labour urged employers to conduct a health and safety risk assessment in consultation with its employees, whilst ensuring that measures are put in place to ensure a healthy workplace in terms of its health and safety obligations such as the provision of the necessary protective equipment and put in place systems to deal with the outbreak, as well as including all mitigating measures that are to be put in place until the outbreak has been dealt with.**

13. As an employee, what are my obligations, if the workplace is open?
The employee and the employer share the responsibility for health in the workplace. Therefore both the employee and employer must pro-actively identify dangers and develop control measures to make the workplace safe. For this reason, employees should abide by any policies adopted by the employer to curb the spread of the Coronavirus. Employees should also inform their employer if they are aware of any risk to the health of their colleagues.

14. Practical Tips if the workplace is open
The following practical tips may be considered:

14.1 The prohibition of unnecessary meetings and the increased use of video conferencing facilities.
14.2 The prohibition of any form of physical contact, specifically hugs and handshakes.
14.3 Requiring employees to report to their manager if they feel unwell in order to possibly allow that employee to work from home.
14.4 Requiring employees to disclose if they have travelled to a high-risk area recently.
14.5 A rule that requires employees to wash their hands regularly.

15. As an employer, what are the options during the shutdown?
The options are set out in the option schedule, included with this survival guide. It includes, annual leave, reduced salaries, the temporary employee relief scheme or the disaster management fund.

*The answers to these questions are always subject to the specific facts of each matter and we recommend that you contact an employment law expert for advice applicable to your facts.

** These issues are developing and we are still to receive further detail on Governments considerations in this respect and when this will become effective.


DISCLAIMER:

The Employment Survival Guide is an informative guide covering a number of topics, which is being published purely for information purposes and is not intended to provide our readers with legal advice. Our specialist legal guidance should always be sought in relation to any situation. This version of the survival guide reflects our experts’ views as of 25 March 2020. It is important to note that this is a developing issue and that our team of specialists will endeavour to provide updated information as and when it becomes effective. Please contact our employment team should you require legal advice amidst the COVID-19 pandemic

 

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