COVID-19 AND EMPLOYEE TIME OFF WORK: A GUIDELINE FOR EMPLOYERS

By Sian Gaffney,Yeleni Bruinders,Lusanda Raphulu Thursday, March 12, 2020
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As the number of COVID-19 positive cases continues to increase worldwide, resulting in international travel bans and quarantines, workplace issues and concerns continue to develop. One such concern is how to treat employee-absence. This article should be used as a guide only. It does not deal with every potential situation. 

In our view, the starting point for employers is to develop a set of rules and an operational response plan that would apply in the various scenarios that may materialise as a result of the spread of COVID-19. These rules must be clearly communicated to the workforce and must be consistently applied.

Employers and employees have a statutory obligation to ensure health and safety in the workplace. Accordingly, employers must take precautionary measures in circumstances where there is a reasonable apprehension that an employee has been exposed to COVID-19.

Acceptable criteria to determine whether a reasonable apprehension exists, include:

  • that an employee has travelled to a country with a high incidence of COVID-19;
  • that an employee has been in close proximity with an individual who has tested positive for COVID-19; and
  • that an employee displays flu-like symptoms, such as coughing, a fever and difficulty breathing.

The employer should require employees to disclose any circumstances that may give rise to a reasonable apprehension, as well as sufficient proof of the incident creating the reasonable apprehension, for example, a copy of the employee’s boarding pass, confirmation that the employee had been in close proximity of the person who tested positive, etc.

Where a reasonable apprehension exists, employees may be required to self-quarantine, either at their own request or at the request of their employers. The standard self-quarantine period is 14 days. Requiring employees to self-quarantine upon a reasonable apprehension ensures that individuals carefully monitor their health, keep their employer updated of their status, and minimise the risk of spreading the COVID-19 virus. In our view, it is not unreasonable to require certification from a doctor that an employee who had been in quarantine is healthy to return to work.

In circumstances where employees have been quarantined in an at-risk country and are unable to return to South Africa for an indefinite or unreasonably long period of time, employers may face serious operational challenges. These challenges should be dealt with by employers with caution.

How is an employer required to treat an employee’s leave of absence from the workplace for reasons related to COVID-19?

Forms of recognised leave

Statutory annual leave: employees are entitled to 15 working days’ statutory annual leave per annum on full pay. This entitlement may be increased by agreement between the employer and the employee.

Statutory Sick Leave: employees are entitled to 30 days’ paid sick leave over a 36-month sick leave cycle. Where the employee is absent for more than two consecutive working days or on more than two occasions in an eight week period, the employer is entitled to require a medical certificate as proof of the employee’s absence due to illness.

Statutory family responsibility leave: employees are entitled to three days’ family responsibility leave on full pay per annum when their child is sick. The statutory entitlement does not apply to the case where a close relative other than a child is ill, e.g. parents or siblings. Employers may grant such additional family responsibility leave at their discretion.

In instances where a reasonable apprehension exists and an employee is self-quarantined, the employer may decide to regard the absence as a form of ‘special leave’ in respect of which the employees would be entitled to be paid. Special leave is not a legislated form of absence and an employer is not legally required to offer such leave. This is because the absence would not be as a result of any of the recognised reasons for employee-absence, such as those listed above. Rather, the reason for the absence is the employer’s need and obligation to ensure a safe and healthy work environment.

Listed below are possible scenarios in which an employee would be required to take time off work for reasons related to the COVID-19 outbreak and how these could in turn be dealt with by an employer.

1. Where a reasonable apprehension exists and an employer or an employee requests that such employee self-quarantine as a precautionary measure (which either party ought to do):

Where it is possible for an employee to work remotely: If the employee is able to work, such a request will not be dealt with as a form of leave because the employee will be required to continue to perform her/ his functions from home and will therefore be entitled to her/ his normal salary and benefits until such time that the self-quarantine period has lapsed.

Where it is NOT possible for an employee to work remotely: Where the employee is not required to attend work, the employer will be required to pay the employee her/ his normal salary and benefits. An employer cannot force its employees to take unpaid leave in these circumstances and therefore ought to offer special leave, if it is feasible for an employer to do so.

Abuse may be reduced by clearly setting out the circumstances that would create the reasonable apprehension, and by requiring proof of the event that gave rise to this apprehension.

2. Where a reasonable apprehension does not exist, and an employee requests to self-quarantine as a precautionary measure:

Where there is no reasonable apprehension, an employee’s absence would need to be taken as annual leave or unpaid leave. In addition, the extent of time that the employee remains away from work must be reasonable in the circumstances.

Should an employee not attend work for an excessive period in circumstances where there is no reasonable apprehension, the employer will need to take appropriate measures to mitigate against any impact on its business operations. This may include taking disciplinary action against an employee where s/ he fails to obey a reasonable instruction to attend work.

Employers should, however, adopt a cautionary approach in these circumstances and seek legal advice prior to taking any disciplinary action against employees.

3. An employee tests positive for COVID-19:

In these circumstances, an employee will be booked off on sick leave until such time that the employee has recovered and no longer tests positive for COVID-19. Should employees exhaust their sick leave entitlement, they might utilise their outstanding annual leave. Alternatively, the employer might consider granting them paid special leave in its discretion and subject to such conditions as it may deem appropriate (such as requiring the employees to conclude pay-back/ work-back agreements), or the leave may need to be unpaid.

In respect of employees other than those who tested positive, the employer should adopt preventative measures as per our previous newsflash which can be found here.

Temporary closure of the workplace may need to be considered as a measure of last resort where alternative preventative measures prove insufficient. Where it is possible for employees to work remotely, then the employer would pay such employees their normal salary and benefits during this time. However, where remote working is not possible or feasible, the employer will need to consider whether the employees’ absence will be paid or not depending on the circumstances.

If the temporary closure is for a short period only, the employer could offer special leave. If the closure is likely to be for a prolonged period, it may not be feasible to continue to pay the employees, and the employer may need to consider unpaid leave or temporary lay-offs. In these circumstances, the employment relationship remains in place, but the employee is not required or permitted to attend work and is not entitled to be paid. It would need to be considered whether there are collective bargaining/ industry arrangements regulating the issue, which may allow temporary layoffs due to unforeseen circumstances.

The same should be considered in relation to the provisions of individual employment contracts that may entitle the employer to suspend the contract due to unforeseen circumstances and not to pay the employee, although this is generally not a standard clause.

Outside of these arrangements, the general rule is that an employer may not unilaterally suspend an employment contract and stop payment. There is, however, an argument that unforeseen circumstances, that expose the employer and the employees to significant and severe risk to health and safety, may entitle the employer to temporarily close operations and stop payment on the basis of a 'supervening impossibility'.

This is unchartered waters in the employment context and ideally the employer should try and attempt to agree with the employees how such absence should be treated.

In appropriate circumstances, employers may be forced to commence retrenchment proceedings in terms of section 189/189A of the Labour Relations Act, 1995. During the consultation process, the employer could potentially offer unpaid absence/lay-offs as an alternative to retrenchment, failing which the employer may have no other option but to dismiss employees based on its operational requirements.

4. An employee quarantined in a high-risk area (e.g. China or Italy):

If an employer anticipates that the quarantine of the employee will be for a short period and the employee is unable to work remotely, the employer may offer special leave, alternatively annual leave could be applied.

If it is anticipated that the quarantine is likely to be for a prolonged period, it may not be feasible to continue to pay the employee. If operationally required, the employer might have to hire temporary workers to assist with work until such time that the employee returns to South Africa.

Dismissals based on the employee’s incapacity due to ‘impossibility or incapability of performance’ could be considered as a measure of last resort. Prior to resorting to dismissal, the employer should try and attempt to agree with the employee how such absence would be treated. Legal advice should be sought prior to taking any decision to dismiss employees in this regard.