South Africa working on new sick leave rules for coronavirus

Government is working on a number of labour interventions to curb the impact of the coronavirus pandemic on South African workers.

This will include consultations with social partners to develop a social compact to extend paid sick leave for workers not currently covered by sick leave provisions to a maximum of three weeks, it said.

All workers who contract the Covid-19 coronavirus at their places of employment will also be supported through the Workmen’s Compensation Fund and Unemployment Insurance Fund (UIF) for sick benefits.

“In an event that an employee is required to be quarantined for longer than 14 days, such leave will be recognised as a special leave and that employee will be eligible to apply for unemployment insurance benefits.

“Government plans to extend UIF for up to three months for registered workers who are laid off or quarantined as a result of Covid-19.”

On Tuesday (17 March), the Department of Employment and Labour published a new guideline for dealing with the coronavirus in South African workplaces, outlining the strategies that businesses should follow to minimise their employees’ risk of exposure.

The department said that employers who have not prepared for pandemic events should prepare themselves and their workers as far in advance as possible of potentially worsening outbreak conditions.

It added that a lack of continuity planning can result in a ‘cascade of failures’ as employers attempt to address challenges of the coronavirus with insufficient resources and workers who might not be adequately trained for jobs they may have to perform under pandemic conditions.

“Worker risk of occupational exposure to SARS-CoV-2 (the virus that causes Covid-19) during an outbreak may vary from very high to high, medium, or low (caution) risk,” the Department of Labour said.

“The level of risk depends in part on the industry type, need for contact within two metres (six feet) of people known to be, or suspected of being infected with SARS-CoV-2, or requirement for repeated or extended contact with persons known to be, or suspected of being infected with SARS-CoV-2.”

Quarantine 

The World Health Organisation (WHO) recommends that any person who is exposed to a Covid-19 patient must be quarantined for at least 14 days from the last time they were exposed to the patient.

To manage the risk of Covid-19 in the workplace, law firm Webber Wentzel said that there are three scenarios where employees will need to take leave away from the workplace:

  • Employer-imposed precautionary quarantine;
  • Employee self-quarantine;
  • Government imposed quarantine of employee.

“Depending on the scenario, there are different answers as to the category of leave that the employee can take. Irrespective of the scenario, if it is possible for the employee to obtain a medical certificate, the leave applicable will be sick leave,” said Webber Wentzel.

“If the sick leave of the employee is exhausted, the employer’s sick leave policy will apply meaning that the employer could award unpaid leave or annual leave or allow the employee to tap into the sick leave cycle.”


Employer-imposed precautionary quarantine

Given that this is an employer imposed period of quarantine, the employer should assess whether it is possible for the employee to work from home, Webber Wentzel said.

If this is possible, no leave will be applicable as the employee would be working from home.

If this is not possible, the employer should consider awarding special paid leave to the employee as it was made compulsory by the employer. Depending on the employer’s leave policy, it may impose annual leave.


Employee self-quarantine

Depending on the reasons for the request for self-quarantine, the employer may allow the employee to work from home (if this is possible), Webber Wentzel said.

“If not, the employee can be requested to take annual leave. If the employee has no annual leave available, the employee can be placed on unpaid leave for the period of quarantine,” it said.

“Nothing stops the employer from implementing special paid leave should it be practical and affordable.”


Government imposed quarantine of employee.

Given that this is a government-imposed instruction and not at the request of the employer or employee, the employer will need to apply its mind carefully to this circumstance, Webber Wentzel said.

“This may amount to a force majeure or supervening impossibility of performance which ultimately means that the employer is unable to fulfil its obligations under the contract of employment and the employer will then be able to implement the no-work-no-pay principle,” it said.


Duty to make work spaces safe

The Occupational Health and Safety Act places an express obligation on the employer to maintain a working environment that is safe and healthy, said Webber Wentzel.

“On the issue of a healthy working environment, the employer must ensure that the workplace is free from any risk to the health of its employees as far as it is reasonably practicable,” it said.

“Within the context of Covid-19, there is a clear obligation on the employer to manage the risk of contamination in the workplace. Failure to comply with such obligations may expose your organisation to a damages claim under the applicable laws.”

Practically, the employer can implement the below measures to comply with its legal duty:

  • Maintain a clean and risk-free working environment;
  • Ensure a healthy working environment by ensuring that the workplace is clean and hygienic;
  • Promoting regular hand-washing by employees;
  • Promoting good respiratory hygiene by employees;
  • Keeping employees informed on developments related to Covid-19.

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South Africa working on new sick leave rules for coronavirus