(This article was first published in July 2020)
The Covid-19 pandemic has caused havoc in the workplace. Thousands of businesses have had to adapt to new work environments, and the hard lockdown during level 5 raised many questions around leave and what benefits employees are entitled to…
Many of those who were unable to work at their company’s premises or remotely during the lockdown were asked to take annual leave. Some were unpaid during this time, or took pay cuts. Many workers are now wondering how this will affect their December holiday plans.
Another question is how sick leave is applied for those who have been forced to self-isolate or quarantine.
Hlengiwe Vilakati answers these questions in the article below. If you have any further questions, you may send them to firstname.lastname@example.org :
As Covid-19 lockdown restrictions continue to ease, and many employees return to work, it is important that employees are aware of their rights regarding their leave entitlement as contained in South Africa’s Labour Legislation.
The pandemic has had devastating consequences all over the world, and at this point, it is unclear when it will end. In South Africa, the impact of COVID-19 has been somewhat softened due to the Government’s swift action to slow the spread of the virus.
Included in South Africa’s plan to slow the spread of the virus was a level 5 nation-wide lockdown implemented by President Cyril Ramaphosa from 26 March to the 30 April 2020 where all employees, except designated essential services, were expected to stay home.
Forced annual leave
According to the BCEA, annual leave can only be taken by agreement between employer and employee. In the absence of any other agreement, annual leave must be taken at a time to suit the employer.
For those who work LESS THAN 5 days a week:
During the nation-wide lockdown, many South African employees (who work fewer than 5 days a week), were unable to tender their services to their employers, and were placed on annual leave in order for them to be entitled to receive their full salaries during the lockdown period.
These leave days would have been deducted from their accumulated total.
What happens if my company has a shutdown period in December?
Many employers have a shutdown period over December. If this is the case, the employer is entitled to stipulate that annual leave must be taken to coincide with the shutdown period. Should an employee utilise their annual leave at another time during the year, then the shutdown period will be treated as unpaid leave.
In the case of the lockdown, the employee would have received their salary during this time. If they don’t have enough accumulated leave to cover the company’s shutdown period in December, then they will not be paid for those days when the company is shut.
In summary: Leave days would have been deducted from the employees during lockdown. They will have to take unpaid leave if the company has a shutdown period over December if they do not have enough accumulated leave days.
For those who are employed FULL TIME:
The Basic Conditions of Employment Act (BCEA) entitles employees who work 5 days a week, to a minimum of 15 working days annual leave, over a period of 12 months of employment with the same employer.
- If you were instructed by your employer to stay at home during the hard lockdown period, your employer may have required you to take your annual leave days, while paying you your full salary. They would then apply for TERS on your behalf in order to “pay you back” a portion of your leave days.
- If you were instructed by your employer to stay at home during the hard lockdown period, and you were NOT PAID for a portion of that time (no-work, no-pay) then you are entitled to your full number of annual leave days.
Absenteeism from the office AFTER hard lockdown
After the change of the lockdown level from level 5 to level 4 and 3 respectively, if an employee is absent, other than where the absenteeism is authorised by their employer, the employee will be required to produce a medical certificate.
Failure to do so could lead to disciplinary action being taken against the employee, including the no-work-no-pay principle, based on the employee’s situation or contract of employment.
What if an employee has to be in self-isolation or quarantine?
In situations where an employee tests positive for COVID-19 or is required to self-isolate, the employee must be placed on ordinary paid sick leave.
If an employees’ sick leave is exhausted, the employer must make an application for an illness benefit in terms of the Unemployment Insurance Act (UIA). The illness benefit is also applicable to employees who, due to COVID-19, agree to go into a cautionary quarantine for a period of 14 days.
If you worked from home & did NOT test positive, you are entitled to your annual leave
Annual leave may not be deducted from an employee who did not test positive for COVID-19, but was nevertheless instructed by their employer to work from home, with no interruption to their workflow. This means that such an employee is still entitled to their full remuneration and benefits as if they were working at their employer’s premises.
Apply for UIF rather than place employees in annual leave
Employers are also encouraged by the Government to apply for the UIF Temporary Employee Relief Scheme benefit (TERS), rather than placing employees on annual leave.
Employees are entitled to the TERS benefit if they are UIF contributors or are employees who should have received benefits under the COVID-19 TERS Directive, but did not, due to circumstances that were beyond their control. Employers can claim on behalf of their employees and the benefit is only available for a period of 3 months starting from the date of the initial lockdown.
Seek the expertise of a law attorney if you’re unsure
Lastly, I strongly recommend that employers should seek out the expertise of an employment law attorney if they are unsure of how to deal with their employees’ leave entitlements. In these unprecedented times, it is important that businesses and their employees work together in order to ensure the survival of South Africa’s economy and the livelihoods of all employees.
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