- CAN AN EMPLOYEE USE SICK LEAVE DUE TO COVID 19 ILLNESS?
Yes. If the employee has paid sick leave available, the employer must provide such leave and compensate the employee.
Paid sick leave can be used for absence due to illness, the diagnosis, care or treatment of an existing health condition or preventative care for the employee, arguably for the employee’s family member.
Preventative care may include self-quarantine as a result of potential exposure to COVID-19 if quarantine is recommended by civil authorities. In addition, there may be other situations where an employee may exercise their right to take paid sick leave, or an employer may allow paid sick leave for preventative care. For example, where there has been exposure to COVID-19 or when the employee has travelled to a high-risk area.
- IF AN EMPLOYEE EXHAUSTS SICK LEAVE, CAN OTHER PAID LEAVE BE USED?
Yes, if an employee does not qualify to use paid sick leave, or has exhausted sick leave, other leave may be available. If there is annual leave or a paid time off policy, an employee may choose to take such leave and be compensated provided that the terms of the annual leave or paid time off policy allow for such leave, for example where the employee is not contractually obligated to take annual leave during a compulsory shut down period.
- CAN AN EMPLOYER REQUIRE AN EMPLOYEE WHO IS IN QUARANTINE TO EXHAUST PAID SICK LEAVE?
The employer cannot compel an employee to exhaust paid sick leave, that is the employee’s choice. If the employee decides to use unpaid leave, the employer can require that they take a minimum number of days of paid sick leave.
- WHAT OPTIONS WOULD AN EMPLOYEE HAVE IF THE CHILD’S SCHOOL OR DAYCARE CLOSES FOR REASONS RELATED TO COVID-19?
Employees should discuss their options with their employers. There maybe paid sick leave or other leave such as family responsibility leave which is available to the employees. Whether the leave is paid or unpaid depends on the employer’s paid leave, annual leave or other pay time policy. Employers may require employees to use their annual leave or paid time off benefits before they are allowed to take unpaid leave. It is not clear whether a parent can choose to use available sick leave to be with the child as preventative care, this would need to be negotiated directly with the employer.
- CAN AN EMPLOYER REQUIRE AN EMPLOYEE TO PROVIDE INFORMATION ABOUT RECENT TRAVEL TO COUNTRIES CONSIDERED TO BE HIGH RISK OR EXPOSURE TO THE CORONAVIRUS?
Yes, in light of the President’s announcement that this constitutes a national state of disaster, the employer can request this information, however, the employee still retains the right to have medical privacy, so the employer cannot enquire into an area of medical privacy.
- IS AN EMPLOYEE ENTITLED TO COMPENSATION FOR REPORTING TO WORK AND THEN BEING SENT HOME?
Generally, if an employee reports for their regularly scheduled shift or work but is required to work fewer hours or is sent home, the employee must be compensated subject again to any agreement which is made with the employer.
- WHAT PROTECTIONS DOES AN EMPLOYEE HAVE IF THEY SUFFER RETALIATION FOR USING THEIR PAID SICK LEAVE?
The Labour Relations Act as amended protects an employee from unfair discrimination. If an employee is on sick leave or if an employee is stigmatised in the workplace and same is proven to be unfair then they would have the rights available to them in terms of the Labour Relations Act to prevent such discrimination.
- CAN AN EMPLOYEE WHO IS UNABLE TO ATTEND AT WORK, DRAW DOWN FROM THE UNEMPLOYMENT INSURANCE FUND?
The purpose of doing so would be to financially assist workers in the event that they are quarantined and cannot go to work. Currently, the existing legislation does not make any provision in terms of remuneration for workers with regards to scenarios that could arise as a result of the COVID-19, for example, the mandatory 14 days quarantine for workers after testing positive for the virus. This, however, is subject to change and the minister of Labour is considering same.
