Employers Rights, During and After COVID19 Lockdown
1. A decision taken by the employer
An employee will not be on sick leave unless a medical certificate has been
issued to the employee placing the employee in quarantine.
An employer may issue an instruction that an employee be placed under quarantine if the employee recently travelled abroad or if the employee displays symptoms of the illness whilst at work. The employer could consider such an employee to be on “special paid leave” away from the office (depending on the nature of the work performed by such an employee). The reason for referring to this type of leave as “special paid leave” is because the BCEA does not recognize, and does not regulate, this type of leave. Employers who instruct their employees to refrain from reporting for work should still remunerate such employees during this period in the event that they are willing and able to offer their services to their employer. If an employer is not able to remunerate the employee during this period, an application for UIF funding can be submitted for the loss of income.
As an alternative to placing the employee on any type of leave, GG the employer can make it possible for the employee to work from home during the quarantine period. If the employee’s medical condition allows him or her to still continue working, then he or she should be allowed to work remotely. If the medical certificate indicates that he or she will be too ill to work, then the employer cannot force an employee to work remotely for the duration specified on the medical certificate.
The World Health Organisation (WHO) has indicated that a person should be in quarantined for a period of at least 14 days. This will be deemed as a reasonable period.
2. A decision taken by the employee
In the event that an employee informs his or her employer that he or she
wants to be away from the workplace for the purpose of imposing a self-quarantine
for precautionary purposes, the employee will not be entitled to paid sick leave.
Employers can opt to pay employees “special paid leave” if they are financially capable of doing so but in the event that they are not in a financial position to pay the employee during this period then the employer will not be obligated to remunerate the employee. An employee also has the option of applying for annual leave that can be used for the quarantine period if he or she wishes to do so. This can be granted at the discretion of the employer.
The employer must carefully consider the circumstances under which special paid leave will be awarded to employees. These circumstances must be made clear to employees. It should be an option of last resort as it may be open to abuse by employees.
The employer and the employee can also enter into an arrangement where the employee works remotely and will still be remunerated for the hours worked. If this is the case, then the employees’ annual leave credits should not be reduced
3. In the event that a medical professional issues a medical certificate for an employee to be placed under quarantine
If a medical professional places an employee under quarantine,
the employee should receive a medical certificate and in such
circumstances the employee will be on paid sick leave.
In terms of section 23 of the BCEA, an employer is not required to pay an employee for sick leave if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
If an employee’s sick leave has been depleted the employee can either be placed on special paid leave or unpaid leave. An application for the loss of benefits can be submitted to the Unemployment Insurance Fund in the event that an employer is not willing to pay the employee once his or her sick leave has been depleted.