Since the pandemic’s start, there have been various amendments regarding the National State of Disaster and its regulations regarding the different lockdown levels. In brief, with the level 5 lockdown, the hard lockdown, employers utilised employees annual leave to this period to pay them their full salary and subsequently claimed this amount back from TERS. Many employers have further been obtaining assistance from the TERS scheme throughout the pandemic. The question that now arises, as the TERS scheme is no longer available to most employers, and may have been on several employer’s minds for a considerable period, is what occurs when an employee must take leave due to either testing positive or being in contact with a COVID-19 positive individual?
To answer what should occur when an employee either test positive or come into contact with a positive individual, one must turn to the Disaster Management Act Regulations published on 1 October 2020. In these regulations, it is provided that an employer must allocate sick leave in terms of section 22 of the Basic Conditions of Employment Act (BCEA) to these employees.
This answer, being simple on the face of it, opens up various opportunities for employees to attempt to abuse the use of sick leave and to be unjustly enriched.
If you have tested positive for COVID-19 or if you have been in contact with a positive individual, the National Disaster Act regulations provide that you must isolate for ten days. For this isolation, the company must apply section 22 of the BCEA, which deals with paid sick leave. This section cannot be considered independently and must be considered in conjunction with section 23 of the BCEA. This section expressly provides that should an employee be absent from work for a period exceeding two days and fails to provide a medical certificate after the employer has requested the employee to provide a medical certificate stating whether the employee was able or unable to work for a specified period; no payment will be required to be made to the employee.
The principle mentioned above will apply to employees who have come into close contact with a positive individual. There is, however, more to delve into regarding close contact. We are all aware that any reasonable employer, to maintain the health and safety of their workplace, will request an employee who has been in close contact with a COVID-19 positive person to go and quarantine for the prescribed ten-day period. This is where most of the abuse of sick leave may occur. Any employee can state that they have been in close contact with a COVID-19 positive individual or are currently having symptoms of COVID-19.
It is now essential to understand what is meant by close contact. Firstly, it can be described as any face to face contact which has occurred, being less than 1 metre apart. Secondly, any persons that have been in a closed space with a confirmed COVID-19 case for at least 15 minutes while not wearing a mask. This can include working closely with individuals, residing in the same household, travelling in the same vehicle, etc.
Next, the exposure risk of the employee must be assessed by the employer:
- High risk of exposure – Employee must quarantine for ten days
- Low risk of exposure – Employee can continue working
An employer can put the following measures in place to attempt to avoid the abuse of this leave. The employer must apply the sick leave policy to any absence due to COVID-19 or related symptoms. Thus, should an employee experience any symptoms or have been in contact with a COVID-19 positive individual, medical advice should be obtained from the employee’s medical practitioner, who will then provide the employer with a sick note or letter which can be used for the allocation of sick leave.
Regarding close contact, should the employer request the employee to quarantine, the employer must further request the employee to attend a medical practitioner to provide them with a medical certificate stating that they were unable to work for the period of quarantine—this request being in line with section 23. In line with the advancements regarding the knowledge about the virus and when it can be detected, an employer can require an employee to be tested for COVID-19 after five days have elapsed since the close contact with a confirmed positive person.
Should the employee fail to provide any medical certificate, no payment should be made. The period should be regarded as unpaid leave, but no disciplinary action should follow.
Should the employee stay away from work on his own accord and later inform the employer that he had either tested positive for COVID-19 or had been in close contact with a COVID-19 positive individual, the following should be requested:
- The test results of the employee;
- A sick certificate booking the employee off;
- Any other supporting documentation or information at the employee’s disposal
Suppose the employee cannot provide any of the above. In that case, the period of absence should be treated as an unauthorised absence, and disciplinary action in this regard should be taken against the employee. In the case where the employee misled the employer regarding being in contact with a COVID-19 positive case or being tested positive for the virus themselves, a charge of dishonesty can be brought against the employee, which may lead to their subsequent dismissal.
Contact your SEESA Labour Advisor to assist your business with any sick leave queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the author:
JP Potgieter is a BEE and Labour Legal Advisor at the SEESA Bloemfontein branch. He completed his LLB Degree through the University of the Free State and is an Admitted Attorney in the High Court of South Africa as well as in the High Court of Lesotho.
- National Institute for Communicable Diseases, Clinical Management of Suspected or Confirmed Covid-19 Disease, Testing. https://www.nicd.ac.za/diseases-a-z-index/disease-index-covid-19/covid-19-guidelines/clinical-management-of-suspected-or-confirmed-covid-19-disease/
- Government Gazette no. 43751, 1 October 2020 – Consolidated Directions On Occupational Health And Safety Measures In Certain Workplaces
- Basic Conditions of Employment Act,75 of 1997 as amended by Act No 7 and 10 of 2018.