COVID-19 SICK LEAVE CRISIS
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 published on 29 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 above approach is confirmed by the Consolidated COVID-19 Directive on Health and Safety in the workplace (published on 4 June 2020), which has replaced the Health and Safety Directive of 29 April. However, 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.
The Consolidated Directive also seems to have introduced a new category of ‘sick leave’. Where an employee has been in contact in the workplace with another employee who has been diagnosed with COVID-19, the employer must assess the employee’s exposure in accordance with the Department of Health’s guidelines. If it is a ‘high risk exposure’ (according to the Guidelines for symptom monitoring and management of essential workers for COVID-19 related infection of 19 May 2020), the employer must place the employee on sick leave in terms of section 22 of the BCEA.
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).
The potential for abuse of sick leave in case of ‘high risk’ employees under the Guidelines for symptom monitoring is somewhat less. It is not the employee or a medical practitioner who decides that the employee should not work, but the employer (after having done and assessment in accordance with the prescribed symptom monitoring guidelines). As it is the employer who decides to send the employee home, the employee should arguably be entitled to paid sick leave without having to produce a valid medical certificate. If the employee turns out to have no illness whatsoever, it should make no difference.
According to the Guidelines the employee must self-monitor and may be required to return to work “if asymptomatic through day 7, following a negative RT-PCR on day 8”. Ultimately it is within the employer’s control, to some extent at least, to determine when the employee should return to work.
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 on the following conditions:
(a) The employee has completed the mandatory 14 days of isolation;
(b) the employee has undergone a medical evaluation confirming fitness to work if the worker had a moderate or severe illness;
(c) the employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette are strictly adhered to by the employee;
(d) the employer closely monitors the employee for symptoms on return to work; and
(e) The employee wears a surgical mask for 21 days from the date of diagnosis.
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 to insist on a medical evaluation or other documentary confirmation that the employee is fit to return to work.
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 Consolidated 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 only 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 Consolidated 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.
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 in terms of C19TERS.
(b) Employee has had contact with a COVID-19 positive case outside the workplace: The employer and employee may agree for the employee to go into self-isolation (quarantine) for 14 days and claim UIF illness benefits in terms of C19TERS. This is not regarded as sick leave in terms of the BCEA. However, if the employee is subsequently tested positive for COVID-19 or produces a medical certificate for another illness, the absence should be converted to paid sick leave.
(c) Employee has had a ‘high risk’ exposure to someone with COVID-19 in 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 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.
(d) Employee suspected by medical practitioner of having contracted COVID-19 in the workplace: If a medical doctor suspects an employee of having contracted COVID-19 arising out of or in the course of employment (but is it still unconfirmed/ there is no positive diagnosis), the medical practitioner may recommend self-quarantine. The employee would be entitled to paid sick leave. However, if COVID-19 is later confirmed, the absence should not be dealt with as sick leave, but rather as a claim for compensation in terms of COIDA.
Mitigating the risk
From the above it would appear that employers may be faced by 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.
Jan Truter for www.labourwise.co.za