COVID-19: LEAVE FOR OCCUPATIONALLY ACQUIRED COVID-19, SOUTH AFRICA
In this article we consider how employers can treat employee absence from work as a result of employees displaying symptoms of COVID-19 (but not confirmed as having COVID-19), being in close contact with a person testing positive but displaying no symptoms, or testing positive for the disease.
In terms of the Occupational Health and Safety Direction of 28 April 2020 (OHS Direction), if an employee tests positive for COVID-19, or displays symptoms associated with COVID-19 or advises the employer that he or she has such symptoms; that employee must not be permitted to come to work.
The employee must be placed on ordinary paid sick leave in terms of section 22 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) or in terms of any more beneficial sick leave entitlement in terms of the employee’s contract of employment.
The ordinary statutory requirements applicable to proof of incapacity in terms of section 23 of the BCEA apply, in that, the employer is not required to pay the employee if the employee is absent from work for more than two consecutive days unless the employee provides a medical certificate stating that the employee was unfit for work on those days.
The OHS Direction provides that if the employee’s sick leave entitlement is exhausted, an employer must make an application for an illness benefit in terms of Unemployment Insurance Act (UIA), read with the Directive by the Minister of Employment and Labour, as amended.
The illness benefit is applicable to employees who agree to go into precautionary quarantine for a period of 14 days due to COVID-19. Quarantine serves to separate a symptomatic individual potentially exposed to a disease from unexposed individuals in such a manner so as to prevent the possible spread of infection or contamination.
Confirmation from the employer and the employee must be submitted to the UIF as proof that the employee was in agreed precautionary self-quarantine for 14 days.
Should the employee be quarantined for more than 14 days, a medical certificate from a medical practitioner must be submitted to the UIF together with a continuation form for payment.
In circumstances where an employee is listed as being in close contact with a person who has tested positive for COVID-19, but does not present symptoms, sick leave and the illness benefit will not be applicable. Ideally, the employee should be required to work from home in order to maintain a healthy and safe working environment. In the event that the employee’s duties cannot be performed remotely, the employer should consider granting special leave (paid leave over and above an employee’s ordinary entitlements to leave).
Granting special leave will be in compliance with the notice published by the Compensation Commissioner in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993, in respect of ‘Occupationally acquired COVID-19’, which records that for suspected and unconfirmed cases of COVID-19 and for self-quarantine recommended by a registered medical practitioner, the employer will be liable for remuneration for the days of absence.