29 MAY 2020
COVID-19 sick leave crisis looming
With a large proportion of the population likely to become infected with Covid-19 before a vaccine is available, businesses are in for a rough ride in the coming months. Some employees will have tested positive, others might simply present with symptoms. Are they entitled to paid sick leave, UIF illness benefits or Compensation Fund benefits?
According to the Health and Safety directive issued on 28 April 2020 (the ‘H&S 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 employer must ensure that the worker is tested or referred to an identified testing site.
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 (unless it is covered by the illness benefit in terms of clause 4 of the Covid-19 TERS directive as addressed hereunder).
Return to work
An employee who has been diagnosed with COVID-19 must be isolated in accordance with the Department of Health Guidelines (the ‘Guidelines’). The employer may only allow the employee to return to work once the worker has undergone a medical evaluation confirming that the worker has been tested negative for COVID-19.
Where an employee has presented with symptoms but has subsequently tested negative, it is not necessarily safe for the employee to return to work. It would be prudent for the employer should insist on a medical certificate that confirms that the employee is fit to return to work.
The H&S directive does not specify the period of time that the employee must stay away from work. It will differ from case to case. Where recovery is slow an employee may be absent for an extensive period. So, what happens once sick leave has been exhausted?
Illness benefits and quarantine
The H&S directive states that if the employee’s sick leave has been exhausted, the employee may claim UIF ‘illness benefits’ in terms of the COVID-19 TERS directive issued on 25 March 2020 (clause 4).
UIF illness benefits in terms of the COVID-19 TERS directive were initially intended for a 14-day period of agreed self-quarantine as a precautionary measure.
The COVID-19 TERS directive allows for the 14-day quarantine period to be extended, provided that a medical certificate and ‘a continuation form for payment’ are submitted to the UIF.
The H&S directive takes the granting of illness benefits a step further, by making allowance for employees to be paid ‘illness benefits’ once their sick leave has been exhausted.
In summary, access to UIF illness benefits are available:
- (a) upfront, as a general precautionary measure, in accordance with the initial intention of COVID-19 TERS (agreed self-quarantine); and
- (b) once sick leave has been exhausted, as envisaged by the H&S directive.
COIDA and sick leave
Where there is evidence that an employee has contracted COVID-19 as a result of occupational exposure, the employer must lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA). This is in accordance with a notice published in the Government Gazette on 23 March 2020 (the ‘COIDA notice’).
In terms of the COIDA notice, 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), a medical practitioner may recommend self-quarantine. According to the COIDA notice the employer is responsible for remunerating the employee in these circumstances.
In our view the employer’s obligation to pay is based on the assumption that the employee has sick leave available to him or her. To the extent that it is not, UIF illness benefits in terms of the COVID-19 TERS directive are accessible to the employee.
Mitigating the financial risk
From the above it would appear that employers may be faced with a significant sick leave burden.
Implementing the precautionary measures prescribed by the Health and Safety directive (published in the GG on 29 April) should go a long way towards mitigating the risk.
A further mitigating measure (not specifically prescribed) would be for the employer to require of employees to immediately disclose to the employer if they have had contact with any persons who have tested positive for COVID-19. Where an asymptomatic employee has had such close contact, the employee can go into self-quarantine as a precautionary measure. The employee can then claim ‘illness benefits’ in terms of COVID-19 TERS directive. This would shift the financial burden, at least for the period of self-quarantine, to the UIF.