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LABOUR LAW IN A NUTSHELL 

COVID 19 LEAVE: What leave options can an employer consider if business is suffering or closing shop temporarily? 

  1. Purpose 

        The purpose of this Special Nutshell to clarify the legal position concerning employee leave options during the Covid-19 virus pandemic.     

  1. Legal Duties 

        An employer must comply with three primary legal obligations in the context of Covid-19

    • The general duty to provide a safe and healthy working environment. This includes the duty to assess possible risks and to implement measures to mitigate against them; and
    • The duty to honour contractual conditions of employment.
    • The duty to take all reasonable measures to mitigate the adverse effects of job reductions or losses as result of operational requirements.     
  1. Leave types 

There are four leave possible options in the context of Covid-19 for Employer to consider if employees may need to stay away from the normal workplace –    

    • Paid sick leave if there is a valid reason for employees to be quarantined.
    • Paid annual leave if there is no valid reason for employees to be quarantined.
    • Paid special leave if the employer grants discretionary special leave to employees in addition to sick leave and annual leave entitlements.
    • Unpaid leave if employees have exhausted their sick leave and annual leave and there is no discretionary special leave. 
  1. Situations 

There are four situations in which employees may need to stay away from the workplace during the Covid-19 pandemic –   

Situation 1

The employer imposes compulsory quarantine as a precaution. On current information, this is 14 days. This can be done for all employees or for specific categories of employees who are considered to be “high risk” employees. The risk in this sense is that they could themselves be exposed to infection and/or they could infect others due to the nature of their jobs and working environments. The risk assessment must be objectively rational.

Situation 2

Employees claim a need to self-quarantine. This would require a valid medical certificate.

Situation 3

The government imposes compulsory quarantine or stay-at-home instructions by law or regulation.

Situation 4

The employer needs to lay-off employees to cut costs due to loss of business and revenue.

  1. Leave type allocations

The leave types would apply to all four Situations in a progressive manner as follows –

(a)          Paid sick leave: Employees will be entitled to paid sick leave up to their individual maximums.

(b)          Paid annual leave: Thereafter, the employer can require them to the convert to paid annual leave up to their individual maximums.

(c)           Paid special leave: The employer may grant a further discretionary period of paid special leave for a fixed period.

(d)          Unpaid “forced” leave: This would apply after all the other leave types have been exhausted. This would be the equivalent of a temporary of lay off of employees for operational reasons. Their contracts of employment are preserved until the employer is able to allow the employees to return to normal work when the Covid-19 ends and when the business recovers financial sufficiently to restart operations.   

  1. Mitigation

Employers should consider allowing employees to work remotely from home on full or partial pay as a mitigation measure if their jobs lend themselves to this option. This would require suitable monitoring, reporting and productivity measures to be formulated.

  1. Unemployment benefits

The Unemployment Insurance Act (UIF) provides payment benefits for employees in Situation (d). The payments are calculated on sliding scale according to income. On average the amounts vary from 38% – 60% for the first 238 days and a flat rate of 20% for the remaining 239 – 365 days. The average amount is about R5500 per month and the maximum is R14 872 per month. 

PATRICK DEALE
labour lawyer & mediator
DEALE ATTORNEYS
Tel:        083 375 8771
Email:   patrick@deale.co.za
Skype:  patrick.deale