As the COVID-19 virus spreads, questions and uncertainty in the workplace are spreading just as fast. It is important to note that during these trying times, employers and employees are still bound by their employment contracts and the general employment laws, unless there is a specific instruction to the contrary from the employer or the State. With attempts to stop the COVID-19 virus from spreading leading to quarantine periods, employees are wondering whether they will be entitled to take leave or still be paid during that period.

  • The basis of an employment contract is for the employee to provide his/her services to the employer in return for remuneration – “No work = No Pay”.
  • As an exception to this general rule, the Basic Conditions of Employment Act (“BCEA”) provides that an employee is allowed to take certain types of leave and still be remunerated for the time spent not working. The most common types of leave include annual leave, sick leave and family responsibility leave.
  • If an employee is unable to work due to illness, the BCEA entitles him/her to take 30 days’ sick leave on full pay during a 36-month period. A medical certificate must be provided in certain instances, for example, if an employee is away from work due to illness for more than two days.
  • If an employee does not qualify for sick leave, then the leave might be unpaid and the employee may institute a claim with the Unemployment Insurance Fund (“UIF”).  Alternatively, the employee might arrange with the employer that the days off be considered as annual leave.
  • If an employee is under quarantine, all the circumstances must be taken into account, for example:
    • The ability of the employee to be able to work during this period – the employer and employee can agree that the employee work from home (if it is possible) and there is no need to put in any leave. The employee must still fulfil his/her duties under the employment contract during this period, unless s/he takes leave.
    • Whether it was the decision of the employer or the employee – if the employer is insisting on an employee being quarantined and that employee cannot fulfil his/her duties during the period, the employer might allow for special leave to be taken. It is important to note that this is not a right provided for in law and completely in the discretion of the employer.
  • An employee can also approach the UIF if s/he loses part of his/her income due to reduced working hours agreed to with the employer and may claim part of the benefits s/he would have received if s/he was totally unemployed.

The Occupational Health and Safety Act provides that employers must provide a safe working environment to employees. The Department of Labour has released a statement urging employers to take all possible measures to mitigate the risk of employees contracting the COVID-19 virus and to prevent it from spreading. However, can an employer force an employee to be tested?

  • The Employment Equity Act provides that medical testing of an employee is not allowed, unless it is provided for by legislation or if it is justified due to factors such as medical facts, employment conditions and social policy.
  • Even though the general rule is that testing is not allowed, it can be argued that the current situation might fall within the factors that justify medical tests to be done. However, it will depend on the circumstances of each matter.

The outbreak of COVID-19 is creating quite a lot of uncertainty. It is vital for employers and employees to ensure employment contracts and legislation are addressed first for any concerns or disputes. It is important that employers communicate with their employees on the measures and processes that they are taking on a regular basis. On the other hand, it just as important for an employee to address any concerns with the employer.

 

Date updated: 20 March 2020