Whilst many people may be aware of employers’ obligations and the precautions that they need to take in the workplace in respect of the recent Coronavirus outbreak – most employees are still unclear as to what their rights are, specifically in respect of leave.
Whilst large entities such as Microsoft have indicated that their employees will be given “special” leave in respect of the Coronavirus, employees need to be aware that “special” leave is not something that they are entitled to in South Africa despite the World Health Organisation declaring the Coronavirus a pandemic and President Cyril Ramaphosa declaring the recent outbreak a national disaster.
Provisions pertaining to employees’ leave are set out in the Basic Conditions of Employment Act 75 of 1997 (“the BCEA”) in terms of which employees, who work more than 24 (twenty four) hours per month, are entitled to the following in respect of leave:
- Paid sick leave
In general, in the first 6 (six) months of employment an employee is entitled to 1 (one) day of paid sick leave for every 26 (twenty six) days worked.
Overall, an employee shall be entitled to 30 (thirty) days of paid sick leave over a 3 (three) year period, less the number of sick days taken during the first 6 (six) month period.
These 30 (thirty) days of paid sick leave can be used at any point in the 3 (three) year period and an employer cannot force an employee to take a certain amount of paid sick leave days per year.
- Paid annual leave
An employee will automatically begin to usurp his/her annual paid leave in circumstances where such employees sick leave has been exhausted.
In general, an annual leave cycle is 12 (twelve) months – starting in the month in which the employee commences employment – and in terms of which an employee is entitled to the following:
- 15 working days (for an employee who works a 5 day week); or
- 1 day’s leave for every 17 days worked (by agreement); or
- 1 hour’s leave for every 17 hours worked (by agreement).
Depending on the specific employer’s leave policies and/or employment agreement with the employee, employees may be entitled to additional days of annual paid leave than those specified in the BCEA.
- Unpaid leave
Whilst there is no provision in the BCEA which entitles an employee to take unpaid leave, the BCEA provides that an employee may be allowed, at the employer’s discretion, to take unpaid leave when their respective paid leave days have been exhausted.
What Happens if you are Diagnosed with the Coronavirus?
An employee, in terms of the BCEA, is only entitled to, inter alia, paid sick leave and paid annual leave.
Any unpaid leave or “special” leave will be at the discretion of the employer and may or may not be contained in the specific employer’s leave policies and/or employment agreements.
Therefore, in the unfortunate event that you are infected with the Coronavirus and are placed in self quarantine, the following options are available to you as an employee:
- Take your paid sick leave, bearing in mind that if you use your full 30 (thirty) days you will not be entitled to any paid sick leave until the next 3 (three) year period commences;
- if you are in a position where you do not have any paid sick leave days available the employee’s annual leave will immediately be utilised, should the employee’s condition not improve;
- should you not have annual leave days or sick leave days available to you, employees’ will unfortunately be placed on unpaid leave;
- it will only be possible for an employee to apply for special leave in circumstances where the employer’s workplace policies, procedures or the employee’s contract of employment makes provision for it; and
- whilst there is nothing in the BCEA that entitles an employee to work from home, given the risk of the Coronavirus spreading this may be an attractive option for employers provided that the employee has the requisite tools of trade or the employer has the resources to provide the employees with same to enable them to continue to work from home. In such circumstances, one would assume that this would not be considered to form part of an employee’s leave provided that they continue to work despite not being present at the workplace.
Notwithstanding the above, employers and employees need to remember that employees also have an obligation in respect of the recent Coronavirus outbreak to abide by any policies adopted by the employer to limit the spread of the Coronavirus and inform their employer if they have or suspect they may have been infected with the Coronavirus or are aware of any risk to the health of their fellow employees.
In this regard, an employee would be in breach of their obligations if they refused to take leave knowing that they have or may have the Coronavirus. Likewise, an employer would be in breach of its obligations in terms of the Occupational Health and Safety Act 85 of 1993 in failing to provide its employees with a safe working environment. It is imperative to note that an employee in this instance, may refuse to attend at his/her place of work if they feel that the working environment is unsafe.
What happens if you do not have the Coronavirus but someone that you live with does?
According to the BCEA, an employee who has been in employment with the same employer for longer than 4 (four) months, and who works more than 4 (four) days per week for that employer, is entitled to 3 (three) days of paid family responsibility leave per year.
Family responsibility leave may only be used when an employee’s child is sick, or upon the death of the employee’s spouse or life partner, or the employee’s parent, adoptive parent, grandparent, adopted child, grandchild or sibling.
Whilst the above highlights the general instances in which an employee would be entitled to family responsibility leave, such as the employee’s child being sick, given the extenuating circumstances occasioned by the Coronavirus outbreak, employers may exercise their discretion in extending the instances in which an employee can take family responsibility leave.
What if you don’t have the Coronavirus, nobody that you live with does, but your employer forces you to take leave anyway?
Whilst the BCEA does not make provision for employers to implement forced leave, this is wholly at the discretion of the employer. In most instances an employer will force an employee to take their paid annual leave and anything above and beyond that may go into unpaid leave. However, given the extenuating circumstances associated with the Coronavirus outbreak employers may make provision for “special” leave in order to accommodate employees.
Whilst the notion of “special” leave appears to be the fairest option given the circumstances, this may not be viable for smaller employers who do not have the resources to compensate for this additional “special” leave.
Moreover, President Cyril Ramaphosa announced that all schools will be closed from Wednesday 18 March 2020 which necessarily has implications for working parents who do not have the resources to hire someone to care for their children during this time. In such circumstances, failing an employer policy dictating otherwise, the employee may be required to take leave from their annual leave in order to care for their children.
Whilst it may seem unfair that employees may be required to use up all of their paid leave and may even have to go into unpaid leave as a result of the Coronavirus outbreak, both employers and employees may be found guilty of an offence in terms of Section 60 of the National Disasters Act 57 of 2002 (the Act in terms of which President Cyril Ramaphosa declared the Coronavirus outbreak a national disaster) should the employee and/or the employee fail to comply with requests made by the National, Provincial or Municipal Disaster Management Centres.
Persons who are found guilty may face a hefty fine or imprisonment for a period not exceeding 6 (six) months.
Notwithstanding what is set out above, the Disaster Management Act 57 of 2002 specifically states that the National Disaster Management Framework must “provide a framework within which organs of state may fund disaster management with specific emphasis on preventing or reducing the risk of disasters, including grants to contribute to post-disaster recovery and rehabilitation and payment to victims of disasters and their dependants” (emphasis added).
Whilst the aforesaid provision does not place a mandatory obligation on the State and is open to much interpretation in terms of who would qualify as a “victim of disasters and their dependents” in respect of the Coronavirus, there is a possibility that this provision could potentially extend to payment to employees who have been impacted by the Coronavirus outbreak.
If you have any questions relating to your employees or your own employment, please contact Varusha Naidoo on [email protected]
VARUSHA NAIDOO (Partner, HJW Attorneys)
TARIN PAGE (Associate Attorney, HJW Attorneys)
MEEGAN REDDY (Candidate Attorney, HJW Attorneys)