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COVID-19 SICK LEAVE CRISIS LOOMING

In Article Archive, Article Archive - Home, Article Archive - Teazer by Jan Truter51 Comments

(UPDATED: 16 July 2021)

Businesses have been facing an uphill battle with employee attendance due to the ongoing Covid-19 pandemic. Besides being absent from work due to contracting Covid-19, the reasons for absence could be any of a number of things: the employee has symptoms; or has been in close contact with another person who has tested positive (at work or elsewhere); or falls within the definition of a ‘vulnerable’ employee; or needs to be vaccinated; or suffers from side effects of vaccination.

Depending on the situation, an employee may be entitled to paid sick leave, annual leave, unpaid leave, UIF illness benefits or Compensation Fund benefits.

1. Where an employee has Covid-19 symptoms

1.1 Sick leave?
According to the Consolidated COVID-19 Directive on Health and Safety in the workplace published on 1 October 2020 (the Consolidated Directive), an employee must be placed on sick leave in terms of section 22 of the Basic Conditions of Employment Act (BCEA) if –

(a) The employee presents with symptoms of COVID-19; or
(b) The employee advises the employer of those symptoms.

The Consolidated Directive adds a number of additional requirements, i.e. that the employer must –

(a) not permit the employee to enter the workplace or report for work; or
(b) if the employee is already at work, immediately

(i) isolate the employee, provide a surgical mask and arrange for the worker to be transported in a manner that does not place other workers or members of the public at risk; the employee must be self-isolated or referred for a medical examination or testing; and
(ii) assess the risk of transmission, disinfect the area and the employee’s workstation, undertake contact tracing and refer those workers who may be at risk for screening and take any other appropriate measure to prevent possible transmission.

1.2 Return to work

The employer may only allow the employee (other than a health care worker) to return to work on the following conditions:

(a) The employee has completed 10 days of isolation –

(i) In mild case of infection (not requiring hospitalisation for Covid-19), from the onset of symptoms; or
(ii) In moderate to severe cases of infection (requiring supplemental oxygen or hospitalisation), from the date of achieving clinical stability or earlier if the worker has undergone a medical evaluation confirming fitness for work;

(b) the employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette are strictly adhered to by the employee;

(c) the employer closely monitors the employee for symptoms on return to work; and

(d) the employee wears a surgical mask for 21 days from the date of diagnosis.

Effectively the employee will be absent for at least 10 days. Is the employee entitled to be paid?

1.3 Proof of illness

There is clearly the potential for abuse if an employee is entitled to stay away from work after merely ‘advising’ the employer that he or she has COVID-19 symptoms.

The employer should be entitled to require proof of illness in terms of section 23 of the BCEA. In the event that an employee is absent for more than 2 days (which will invariably be the case in these circumstances) an employer is not required to pay the employee unless the employee produces a valid medical certificate.

The employee will ultimately either be diagnosed as having contracted COVID-19, or not. If not, it may very well be that the employee contracted a different disease, e.g. a common cold or influenza virus. Either way, if the employee produces a valid medical certificate the employer will be obliged to pay if the employee has sick leave available to him or her.

2. Employee exposed to a person with Covid-19

How does one deal with an employee who has no symptoms, but has been exposed to a Covid-positive person?

The approach may depend on whether the exposure was ‘high risk’ or ‘low risk’, and whether it occurred inside or outside the workplace.

2.1 Exposure inside the workplace

The Guidelines for symptom monitoring and management of workers for SARS-CoV-2 infection (updated 12 December 2020) apply.

Line management has to assess and confirm Covid-19 exposure. The guidelines differentiate between a ‘high risk’ and ‘low risk’ exposure in the workplace.

Generally, an exposure would be ‘high risk’ if an employee has been in close contact (within 1 meter) from a Covid-19 confirmed case, for more than 15 minutes, without Personal Protective Equipment. In such a case the employer must insist that employee self-isolates and performs daily symptom self-checks and completes a symptom monitoring form for 10 days after the last Covid-19 exposure. If asymptomatic for 10 days, the employee may return to work. If the employee cannot continue to work while in self-isolation (e.g. in an isolated location at the workplace or at home), the employee’s absence should be regarded as sick leave (unless it falls within a period that C19TERS benefits can be claimed – see par. 5 below).  On the other hand, if it turns out that the employee did in fact contract Covid-19 in the workplace, the absence should not be dealt with as sick leave in terms of the BCEA. It should instead be dealt with as a claim for compensation in terms of COIDA (see paragraph 3 below).

If there has been a ‘low risk’ exposure, the employee can continue working, but subject to self-monitoring and symptom checking in accordance with the guidelines. The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

2.2 Exposure outside the workplace

The employer has little or no control over an employee’s exposure to Covid-19 outside the workplace. This is where the potential for abuse of sick leave is the greatest.

We suggest the employer starts off by following a similar approach to what is required for exposure in the workplace, i.e. establish through careful questioning whether there has been a ‘high risk’ exposure: i.e. whether the employee was in close contact (within 1 meter) from a Covid-19 confirmed case, for more than 15 minutes, without PPE.

However, because of the risk of abuse of sick leave, it would be reasonable for the employer to insist that the employee provides substantiating evidence before treating it as paid sick. Employers have some leeway to introduce their own rules and procedures. For example, the employer may insist that the employee be tested before deciding whether to treat the employee’s absence as sick leave. If the employee refuses to be tested or tests negative, it can be treated as unpaid or annual leave.

If it has been a ‘low risk’ exposure, the employee can continue working, but subject to self-monitoring and symptom checking (similar to the guidelines for ‘low risk’ exposure inside the workplace).

3. COIDA

Where there is evidence that an employee has contracted COVID-19 as a result of occupational exposure, the employer must report the it as an occupational disease to the Compensation Commissioner in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA) with 14 days of it coming to the employer’s attention. The employer must also lodge a claim for compensation in terms of the directive published in the Government Gazette on 23 July 2020 (the ‘COIDA directive’).

In terms of the COIDA directive, payment for total temporary disablement will be made by the Compensation Fund for as long as the disablement continues (i.e. as long as the employee is booked off), but not for a period exceeding 30 days.

In suspected or unconfirmed cases (i.e. where there is no positive diagnosis and the person is ‘under investigation’), the guidelines as set out in par 2.1 above apply.

4. Vulnerable employees

The Department of Health issued a document entitled “Guidance on vulnerable employees and workplace accommodation in relation to COVID-19 (V4: 25 May 2020)”. From the outset it must be pointed out that this document does not bind employers, but is merely a guideline.

Vulnerable employees can be described as employees with known or disclosed health issues or comorbidities, or employees with any conditions which may place such employees at a higher risk of complications or death if they are infected with Covid-19, or employees above the age of 60 who are at a higher risk of complications or death if they are infected with Covid-19. (The Guidance provides a more detailed description.)

According to the document the treating doctor /occupational medical practitioner may motivate ‘temporary incapacity’ for the period of the COVID-19 pandemic on the grounds that workplace accommodation is not possible. The document further states that the employee should be able to utilise his/her sick leave if appropriate.

In our view employers do not have to treat a vulnerable employee’s absence as paid sick leave, but may opt to do so if the employee has paid sick leave available and elects in writing to utilize that leave for this purpose. Otherwise such absence will be unpaid (unless the employee utilizes any available accrued annual leave to in respect of the absence). Alternatively, if treating doctor /occupational medical practitioner is willing to motivate the employee’s absence as ‘temporary incapacity’, the employee may be able to claim UIF ‘illness benefits’.

5. Quarantine and C19TERS benefits

Employees who are required to remain in isolation or in quarantine after a ‘high risk’ contact are entitled to C19TERS benefits for up to 10 days of isolation.

Once the extension has elapsed, absence from work should be dealt with in terms of the guidelines in 2.1 and 2.2 above.

6. Paid time of related to vaccination

Two new categories of ‘paid time off’ came into being as of 11 June 2021. Both of these relate to Covid-19 vaccination. These are paid time off to be vaccinated, as well as ‘sick leave’ off due to the side effects of vaccination. (See our article at https://www.labourwise.co.za/labour-articles/vaccination-and-sick-leave)

7. Summary of sick leave and other benefits

An employee’s entitlement to paid sick leave and other benefits in the COVID-19 context, can be summarised as follows:

(a) Employee presents with or advises of COVID-19 symptoms: The employer must place the employee on paid sick leave in terms of the BCEA. The employer may require the employee to produce a valid medical certificate before paying the employee. If sick leave is exhausted, the employee may claim UIF illness benefits.

(b) Employee has had a ‘high risk’ exposure to someone with COVID-19 inside the workplace: Where an employer makes an assessment that the employee has had a ‘high risk’ exposure to COVID-19 at work, the employee should provisonally be placed on paid sick leave. The employee does not have to produce a medical certificate. However, if COVID-19 is later confirmed, the absence should not be dealt with as sick leave in terms of the BCEA, but rather as a claim for compensation in terms of COIDA.

(c) Employee has had a ‘low risk’ exposure to someone with COVID-19 inside the workplace: The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

(d) Employee has had a ‘high risk’ exposure to a COVID-19 positive case outside the workplace: The matter will be treated in a similar way to an employee who has been exposed in a Covid-positive case in the workplace. The employer should self-isolate, but also the employer may insist that the employee provides substantiating evidence before treating it as paid sick leave. Employers have some leeway to introduce their own rules and procedures. For example, the employer may insist that the employee be tested before deciding whether to treat the employee’s absence as sick leave. If the employee refuses to be tested or tests negative, it can be treated as unpaid or annual leave.

(e) Employee has had a ‘low risk’ exposure to a COVID-19 positive case outside the workplace: The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

(f) Vulnerable employees: The absence of an employee from work merely due the employee being vulnerable, may be treated as annual leave or unpaid leave. In exceptional circumstances the employer may treat it as paid sick leave, but it remains in the employer’s discretion. If a treating doctor /occupational medical practitioner is willing to motivate the employee’s absence as ‘temporary incapacity’, the employee may be able to claim UIF ‘illness benefits’.

(g) Quarantine and C19TERS benefits: Employees who are required to remain in isolation or in quarantine after a ‘high risk’ contact are entitled to C19TERS benefits for up to 10 days of isolation. This only applies until the extension of C19TERS comes to an end.

(h) Paid time off related to vaccination: Employees are entitled to paid time off to be vaccinated, as well as ‘sick leave’ due to the side effects of vaccination.

8. Conclusion

There is a wide range of Covid-19 related situations that employers face on a daily basis. The health and safety regulations and guidelines have been rather vague with regard to sick leave and there have also been several changes since the start of the pandemic. This has been very confusing.

We have proposed an approach with reference to the current regulations and guidelines as we understand them. While employers should try to be consistent in their approach, there are many variables that could affect the way a particular situation is dealt with. Subscribers are welcome to call us for guidance.

For Covid-19 related documentation, CLICK HERE

Jan Truter for www.labourwise.co.za

Comments

  1. Please assist. My 4 year old tested positive I am negative, have to stay home with he to isolate. Does this come out of my annual leave, sick leave or family responsibility.

    1. Author

      One should start of by treating it as family responsibility leave (sick child), but after that you can apply for annual leave or unpaid leave. However, if you also contract Covid your absence should be treated as sick leave.

  2. Hi
    An employee’s family member tested positive. They live in the same home.
    Employee went off to isolate. Seeing that she is vaccinated and had Covid a few months ago, are we allowed to ask that she comes to work and work separately from all other staff in a meeting room.

    1. Author

      Based on the stated facts it would seem reasonable to expect the employee to return to work subject to the measures that you have mentioned (as well as other reasonable monitoring and precautionary measures).

  3. Good day

    I would want to know if an Dep of Health Medical Certificate is valid for covid 19 sick letter and if the
    employee must be paid for the days . And where can we get all the correct info on how to go about.

    1. Author

      You don’t have to accept the certificate on face value. IF it is the employee’s desire to stay at home, you only need to regard it at sick leave if the employee can provide proof that he or she contracted Covid. However, as an employer with an obligation of ensuring the health and safety of all your employees and the public that interact with your employees, you have to make a proper assessment of the risks. If the employee is unsymptomatic and prefers to work and you insist that he/she stays at home, the employee would have a good case to insist on being paid.

  4. Okay so I was stationed at a colleagues work station who was covid positive and then I contracted the virus but now my employer is taking my sick leave. Are they allowed to do this as I clearly contracted the virus at work. I even got my wife and daughter also tested and they were negative. Please advise

    1. Author

      It should really be dealt with as an occupational disease in terms of COIDA, not sick leave. However, the claims process is somewhat cumbersome and it may take a long time before benefits ae paid out.

    2. My husband had covid(high risk environment) and was in hospital for 3 weeks his employer said he must come back to work even though he can’t go without O2. What does the law say

      1. Author

        I suggest that your husband obtains a medical certificate stating that he is not fit to return due to the dependence on oxygen.

  5. I was sent to self isolation due to being in high risk close contact with someone who tested positive.
    I went for a test and tested negative but was told to remain in isolation for 10 days.

    The thing is they treated those days as if I
    was absent from work and they won’t be paid

    1. Author

      If you had tested positive, it would probably have been treated as paid sick leave.

    2. I had 3rd party exposure to someone that tested positive and my employer insisted i stay at home for 10 days even after the person i was in contact with and myself teated negative. I dont have sick leave left due the the company taking my sick leave last year when i was forced to Quarantine after my wife tested positive, due to this they are putting this thru as unpaid leave. I find this to be unfair as i am fit an able and tested negative and even the person i was in contact with tested negative however the company insisted that i stay at home so why should i now get unpaid leave. Kindly assist me or guide me with any legal standing that i may have to get paid.

      1. Author

        It is not clear what the company’s reasoning is, but based on the facts as stated by you the risk of infection seems to be very low and it would seem reasonable for them to pay you. We suggest that you raise it as an internal grievance before approaching the Department of Employment and Labour.

  6. How do you deal with an employee that goes to clinic after payday weekend. Employer has a slight cold. Then gets a letter to quarantine for 10 days. No covid symptoms, not in contact with someone who tested positive and no covid test done as she falls under certain age group. Been getting lots of those. Leave, sick leave or how do you handle this. Employee has to be paid but you also have to pay an extra person to do his or her work.

    1. Author

      If the employee is not too ill to work and then tests negative, it may be justified to treat it as unpaid leave.

  7. I tested positive after I received my covid first vaccine.
    Will I be paid for 14 days off from work

    1. Author

      The answer to your question is under point 1.2 of the article.

  8. Hi there.
    I got robbed on the 26th of June and I was beaten badly .I went to the doctor on the 1st of July after the employer forced me to go to the site on the 30th of June.on the 1st July 2021 doctor sent me to Helen Joseph hopital immediately, when I get to the hospiral they checked my eye they found that my eye it’s damaged and it won’t able to see again I have to go for operation. Before operating I had to go for covid test band I tested positive I had to asolate for 10 days then I went back to the hospital for another covid test then I tested negative. They told me to come for pre operation on the 15th of july, when I get to the hospital doctor told me that the weather is bad for theatre because it was very cold I must come come back on the 19th of july 2021 which was Monday.when I go back to the hospital on Monday 19th of july I went for covid test again then I tested positive. I am on asolating again and I didn’t do operation.I sent my employer each and every result and pictures of my sick note but the employer paid me only half of my salary .Please advise me on this one.Thank you

    1. Author

      It sounds like you have been very unlucky. If you keep being open and honest with your employer, I trust your employer will be sympathetic. Just bear in mind that paid sick leave is limited.

  9. Good day

    we have a new employee that tested positive after a week of employment, according to the BCEA she does not have sick leave days or annual leave but claims she should be compensated because theres a law that covers covid19 leave. She is employed on a fixed term contract. she contracted the virus from her home where she stays.
    I have searched everywhere for the law but cannot find it
    please assist

    1. Author

      It would be regarded as unpaid leave, unless the employee contracted Covid in the workplace (in which case it would be dealt with as an occupational disease in terms of COIDA)

  10. Good day
    I was send home to self isolate and get tested for Covid19 and was negative but my employer don’t want to pay me for days at home I did give him my hospital letter and I still have sick days.

    1. Author

      Employers have some scope to make their own rules surrounding absence due to reported Covid symptoms. If you had tested positive, it would probably have been treated as paid sick leave.

  11. I work as a carer for a elderly couple. Their daughter fired me for refusing to vaccinate.

  12. I returned to my previous employer on the 7th of June I tested positive for Covid on the 1st. I only have 1 day sick leave and the rest is now unpaid.

    1. Author

      That is correct, unless you contracted Covid in the workplace in which case there would be a claim against the compensation fund.

  13. If an employee informs a employer that he was a close contact “high risk” should the employee be send home immediately or not and if the employee is not send home can that employee be held responsible if any other employees might fall ill as it is still to early for him to test

    1. Author

      The employer should discuss it with the employee to establish if the contact was indeed high risk as defined. If so, the employee should self-isolate unless the nature of the work is such that others are not exposed.

  14. I just got tested positive after being exposes to covid at my workplace. Apparently it will be unpaid …. I don’t think it’s fair . My manager tested positive last week Sunday and we had a one on one meeting the previous Thursday . I went for test today as it was my 7day after exposure period . I’ve been told to come to work this whole week if there is no symptoms so we can operate while the rest of the team that tested positive stays at home. Today I went to work and could only go test during my lunch break and when I got back I was treated extremely poorly and felt discrimated against when I was just being a good employee to stand in while the rest are at home and also because I’ve been told to come in if I don’t have symptoms.

    1. Author

      It should be covered by COIDA (workmen’s compensation)

  15. I’m a teacher at X primary school, I have a grandson I live with who also attend the X primary school. We use the same car as we live together. My grandson tested positive for covid 19.

    The Dr told us to quarantine for 10 days and we are not allowed to leave the house.
    The Dr said he will give me proof after 10 days of quarantine.so the principal is giving me pressure of the proof and I’m helpless because I had send her the results of the child from lancet laboratory,then she will get other proof after meeting the Dr after quarantine.
    Please help what must I do

    1. Author

      Perhaps you can ask the doctor to write a note confirming that he told you to self-isolate. The Principal needs to be patient.

  16. Dear Mr Truter

    I have been for a test which came back negative, however, my physician who has sent a certificate to my employer stating the her clinical decision is that I am still at risk of transmitting the virus, as the noses swabs are not 100% true results. My employer had asked if I am able to work from home, which I had said yes, but do still have symptoms which exhaust me and headaches continually and do rest during the day. They are said that if I cannot report for a full day of work then I need to stay off and they will claim against my sick leave. I offered assistance and they are not accepting this. Please advise what I can do in a situation such as this.

    Thanking you.

    1. Author

      It would be best to treat it as sick leave (rather than unpaid or annual leave) in these circumstances.

  17. Hi Jan

    At my workplace,one of my colleagues tested positive for covid 19.As a close contact,i was asked to self isolate for 10 days initially. After day 3 ,i was sent for a test…and after testing negative,i was told to return to work.
    My employer has put in sick leave for me,but if my colleague has picked up the virus at work,it will not come off his sick leave.Why would special leave not apply for me ..as I was sent home,while being healthy and not showing symptoms.

    Thanks in advance

    1. Author

      There are no absolutes on how an employer should manage the risk of Covid-19. Up until 15 March absence due to self-isolation could be claimed from the UIF as “illness benefits”. After that, there is no clear guideline. Categorising your absence as sick leave is probably better than unpaid leave or annual leave.

      1. Good day

        My daughter is sick took her to the doctor booked her off for 2days now I got a letter from skool saying the 2 teachers had close contact with a positive person now her skool is closed till thay get there results what do I tell my work and my child is in close contact with both her teachers as she is two and a half what do I do and my work place is not happy about me being out of work today.

        1. Author

          This type of situation is not catered for the the regulations and guidelines. Talk to the employer about working from home or taking annual leave.

  18. Could you please give me a call as I had covid and would like to know how the leave works as my work has put it as unpaid

    thank you

    1. Author

      If an employee has been booked of for Covid-19 and it has not been contracted in the workplace, it should be regarded as paid sick leave (unless sick leave has been exhausted). Where Covid-19 was contracted in the workplace it should be treated as an occupational disease and the claim will be against the compensation commissioner in terms of COIDA.

  19. Hi my Manger got tested positive
    He’s back at work
    I started showing symptoms
    And got booked of for 10 days self isolation
    Now my boss say he’s not gonna pay me
    Should I get paid and if yes does this come from your sick leave

    1. Author

      If you were tested positive you should be entitled to paid sick leave (or, if it can be shown that the illness was contracted at work you would have a “Workmen’s compensation” claim).

  20. Hi
    My colleague tested positive for Covid, and he was advised not to tell us, but he did.
    Myself had symptoms I tested positive, stayed home. Now when I return I was told to apply for sick leave, where’s I know that it’s supposed to be special leave, so how exactly it’s done because this virus is national disaster not my fault.

  21. hi,

    how do i apply as an individual for the 14 day isolation UIF illness benefit. The company said i need to apply for the benefit on my own as i came in contact with someone off the premises.

    1. Author

      The illness benefit envisaged for quarantine requires a letter from the employer and employee confirming their agreement. It cannot come from one party only.

  22. Hi,I got myself tested for the covid19 so they put me on self guarintine for 14days so ..my problem is I did sent my medical certificate to work,but my work didn’t pay me for that 14days .Head office at work says that I must go for my uif …I just want to know can my employer do this..even if I have sick leave

    1. Author

      When you are in self-quarantine, it does not amount to sick leave. There are forms that both employer and employee need to complete in order for you to claim UIF.

  23. One of our employees tested positive for Covid19…He was asymptomatic. …As we share the same canteen and sits opposite each other (our canteen is very small),I went for testing…i had to self quarintine for 3 days as per the medical certifcate. How ever i got my results on the 5th day…that being a Sunday. ..i informed my employer emediatly. ..The certiificate only covered up until the Friday..I request a paid sick leave day as per the 8 week cycle,and I was refused…I was told I will not get paid for the day…
    Can you please assist
    Regards
    Joan

    1. Author

      You would only be covered for the period of the medical certificate, unless you and your employer agree to for you to go into self-quarantine in which case you can claim “illness benefits” for up to 14 days.

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