Coronavirus and sick leave rights: Here’s what you need to know

The coronavirus outbreak has changed how consumer-facing brands do business in recent weeks. In the USA, Starbucks and Dunkin’ banned reusable mugs. 

If you were planning to skip out on work and stay home instead, keep reading. You may not be entitled to sick leave if placed under quarantine, and here’s why.

Coronavirus and sick leave rights

Senior legal advisor at Strata G Labour and HR Solutions, Tertius Wessels, pointed out that employers has an obligation to ensure “a safe and healthy working environment.”

Speaking to Cape Talk’s Abongile Nzelenzele about the rights and obligations of management and staff regarding the coronavirus. Wessels explains:

“There is a great deal of information and advice out there, especially on social media platforms, and not all of it is accurate or true. Employees need to follow the guidelines of the World Health Organisation (WHO) and the Department of Health and its National Institute of Communicable Diseases (NICD)”.

However, that raises the questions: How should employers manage sick leave in relation to COVID-19? Wessels explains that an employee should receive a medical certificate if placed under quarantine.

Compulsory quarantine and COVID-19

But, and there’s always a but, he added that an employee might be “placed under compulsory quarantine” as a precautionary measure,” which may not necessary be enforced by the employer.

“In cases like those, the employee will not necessarily be entitled to sick leave. It is a very unique situation, and there is nothing in law to compel the employer to pay the employee for that period of quarantine. […] An employee only has certain types of leave – and the requirement for sick leave is a valid medical certificate.

Listen: Strata G Labour and HR Solutions, Tertius Wessels

According to Aadil Patel, National Head of the Employment practise and Anli Bezuidenhout, Senior Associate in the Employment practice at Cliffe Dekker Hofmeyr (CDH), sick leave entitlement is regulated by The Basic Conditions of Employment Act 75 of 1997.

“During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.”

If an employee works five days a week, the sick leave cycle equates to 30 days’ sick leave per 36 months of employment.

Furthermore, and subject to section 23 of the BCEA, an employer must pay the wage an employee would ordinarily have received for work on that day. The payment should also be made on the usual payday.

As per the terms of section 23 of the BCEA, Patel says that 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 without providing a medical certificate.

“The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council”. 

COVID-19 is no excuse to abscond from work

That doesn’t mean that you can use the coronavirus as an excuse to stay away from work on a whim. All employees remain obligated to report for duty, unless otherwise instructed by their employers.

An employee who refuses to report for duty has to provide a valid reason, and unfortunately, the mere presence of coronavirus in South Africa is not a valid reason.

Employees remain obligated to come to work, unless instructed otherwise by their employers.  Employees who refuse to come to work must have a valid reason for their absence. Bezuidenhout adds:

“Employees who stay away from work without a valid reason, may face disciplinary action. We encourage employees to rather speak to their employers about their concerns before making a decision to stay at home, without authorisation”.

What if you have no sick days available?

According to the experts, an “employer is not required to pay employees for sick leave taken when the sick leave entitlement has been exhausted”.

That said, you still have the option of taking authorised unpaid leave and claim illness benefits in terms of the Unemployment Insurance Act 63 of 2001 (UIA).

“In terms of section 20 of the UIA, a contributor is entitled to the illness benefits contemplated in the UIA for any period of illness if, inter alia, the contributor is unable to perform work on account of illness”.