Employers have been navigating uncharted waters since the national lockdown was implemented end of March 2020. So many challenges arise: sick leave, health and safety, retrenchment, short time, UIF, payment of salaries, uncertainty and discipline in the workplace, etc. The lockdown was implemented to curb the spread of the COVID-19 virus in order to allow time to prepare South Africa’s health system’s capacity so as to be able to accommodate COVID-19 cases.
With the ensuing different alert levels being implemented, more businesses may operate on different levels of capacity and people’s movement is less restricted. This links to an increased risk of infection. Some employees will present with COVID-19 symptoms and/or test positive. Employers must ensure that these cases are managed in line with the requirements set by labour legislation and Government Notices regarding COVID-19 occupational health and safety measures.
Paid sick leave
The Health and Safety directive (Directive) issued on 28 April 2020 directs that when an employee informs the employer of, or presents with COVID-19 symptoms, an employee must be placed on sick leave in terms of Section 22 of the Basic Conditions of Employment Act. The employee must then be tested for the virus and present a medical certificate to the employer:
- If the employee tests positive for COVID-19, the number of days’ paid sick leave will differ from employee to employee depending on the rate of recovery. An employee may only be allowed to return to the workplace once the employee has undergone a medical evaluation confirming that the employee tests negative for COVID-19 and is fit to work.
- If the employee tests negative for COVID-9, the employee must return to work immediately. The absenteeism whilst awaiting the test result will still be dealt with as paid sick leave.
Paid sick leave is exhausted
In terms of the Directive an employee may claim UIF “illness benefits” in terms of the COVID-19 TERS directive issued on 25 March 2020 (clause 4). COVID-19 TERS claims were initially intended for a 14-day period of agreed self-quarantine as a precautionary measure but now allows for the 14-day quarantine period to be extended, provided that a medical certificate confirms the ongoing illness.
COIDA and sick leave
When an employee has contracted COVID-19 as a result of occupational exposure, the sick leave period will not be normal sick leave days but special sick leave days. The employer must lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA). In terms of COIDA, payment for total temporary disablement will be made by the Compensation Fund for as long as the employee is booked off sick, but not for a period exceeding 30 days.
Employers have an obligation to create and maintain a safe and healthy working environment and implement an infection control plan in the workplace according to a health and safety risk assessment.
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