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Employers’ obligations when employees get COVID-19

by Lucy Phillips. What are employers’ obligations to employees that test positive for the coronavirus, COVID-19? As an employer, what are their obligations whilst the workplace is open?

by Lucy Phillips. What are employers’ obligations to employees that test positive for the coronavirus, COVID-19? As an employer, what are their 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.

As an employer, you have a duty to protect your employees against contracting the coronavirus at work. It is with this in mind that the Government announced on April 23, 2020, that companies returning to work as part of the stage 4 lockdown must do so in a staggered manner, by allowing no more than a third of its workforce to return to work on May 4, 2020; and further, that employers prepare and secure the work environment before employees return to work.

For this reason, we recommend that employers adopt contingency plans and communicate with their employees regarding the measures that will be adopted in securing the workplace. This may include:

  • the prohibition of handshakes or physical contact;
  • limitation on meetings;
  • sufficient supply of hand sanitiser; 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.

What is an employee’s sick leave entitlement?

COVID-19 has been declared an occupational disease. If an employee is absent from work due to contracting the coronavirus at or in the course of his or her employment, it will not be regarded as sick leave. Instead, it would be covered in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA). The employee must as soon as possible after the commencement of a disease give written notice thereof to his or her employer, or to the employer where he or she was last employed; and he or she may also give written notice of the said disease in the prescribed manner to the compensation commissioner. Thereafter, a further process needs to be followed by the employer and a medical practitioner.

If, however, it cannot be shown that the coronavirus was contracted in the course of the employee’s employment, any period of absence as a result of being infected will be regarded as sick leave.

Illness benefits for 14-day quarantine period

There is a UIF benefit available to employees who are quarantined for 14 days due the coronavirus (i.e. “special leave”), irrespective whether the employee has contracted the virus or not. No medical certificate is needed for the first 14 days, but the employer and employee have to submit a letter of proof that they have agreed to “special leave”. In addition to the letter referred to above, there is certain other documentation that has to be submitted (See “UIF Easy-Aid Guide”).

While this option is available in principle, it was not available during the 21-day lockdown, except for employees who are able to work due to being part of essential services. At this stage it seems that it may be used after the lockdown.

In the event that the employee does not meet the minimum requirements applicable to claim the UIF benefits created by Government to ease the impact of the coronavirus, ordinary sick leave will need to be utilised for absence from work due to illness. The Basic Conditions of Employment Act 75 of 1997 (BCEA) regulates sick leave entitlement. And in terms of section 22 of the BCEA a “sick leave cycle” means a 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.

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. However, they may not be dismissed without following the correct dismissal procedures.

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.

 

 

Lucy Phillips heads up Consilium Legal, after founding the company with Natalie Laurencik in 2012. As a specialised consultancy, Consilium is focused on the commercial aspect of its clients’ businesses, such as commercial, corporate and advisory work. Having previously worked at FNB, where she was Legal Contracts Manager, and as Head of Legal (procurement) at Rand Merchant Bank; Phillips has extensive experience and expertise in staff training and continuing education on data privacy; consumer protection; roles and duties of directors under the Companies Act 2008 and the laws relating to social media.

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