COVID-19 Sick leave crisis looming

COVID-19 Sick leave crisis looming Labourwise

Businesses are facing an uphill battle with employee attendance due to the ongoing Covid-19 pandemic. Besides being absent from work due to contracting Covid-19, the reasons for absence could be any of a number of things: the employee has symptoms; or has been in close contact with another person who has tested positive (at work or elsewhere); or falls within the definition of a ‘vulnerable’ employee.

Depending on the situation, an employee may be entitled to paid sick leave, annual leave, unpaid leave, UIF illness benefits or Compensation Fund benefits.

1. Where an employee has Covid-19 symptoms

1.1 Sick leave?
According to the Consolidated COVID-19 Directive on Health and Safety in the workplace published on 1 October 2020 (the Consolidated 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 symptom.

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.

1.2 Return to work

The employer may only allow the employee (other than a health care worker) to return to work on the following conditions:

(a) The employee has completed 10 days of isolation –

(i) In mild case of infection (not requiring hospitalisation for Covid-19), from the onset of symptoms; or

(ii) In moderate to severe cases of infection (requiring supplemental oxygen or hospitalisation), from the date of achieving clinical stability or earlier if the worker has undergone a medical evaluation confirming fitness for work;

(b) the employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette are strictly adhered to by the employee;

(c) the employer closely monitors the employee for symptoms on return to work; and

(d) the employee wears a surgical mask for 21 days from the date of diagnosis.

Effectively the employee will be absent for at least 10 days. Is the employee entitled to be paid?

1.3 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.

2. Employee exposed to a person with Covid-19

How does one deal with an employee who has no symptoms, but has been exposed to a Covid-positive person?

The approach may depend on whether the exposure was ‘high risk’ or ‘low risk’, and whether it occurred inside or outside the workplace.

2.1 Exposure inside the workplace

The Guidelines for symptom monitoring and management of workers for SARS-CoV-2 infection (updated 12 December 2020) apply.

Line management has to assess and confirm Covid-19 exposure. The guidelines differentiate between a ‘high risk’ and ‘low risk’ exposure in the workplace.

Generally, an exposure would be ‘high risk’ if an employee has been in close contact (within 1 meter) from a Covid-19 confirmed case, for more than 15 minutes, without Personal Protective Equipment. In such a case the employer must insist that employee self-isolates and performs daily symptom self-checks and completes a symptom monitoring form for 10 days after the last Covid-19 exposure. If asymptomatic for 10 days, the employee may return to work. If the employee cannot continue to work while in self-isolation (e.g. in an isolated location at the workplace or at home), the employee’s absence should be regarded as sick leave. On the other hand, if it turns out that the employee did in fact contract Covid-19 in the workplace, the absence should not be dealt with as sick leave in terms of the BCEA. It should instead be dealt with as a claim for compensation in terms of COIDA (see paragraph 3 below).

If there has been a ‘low risk’ exposure, the employee can continue working, but subject to self-monitoring and symptom checking in accordance with the guidelines. The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

2.2 Exposure outside the workplace

The employer has little or no control over an employee’s exposure to Covid-19 outside the workplace. This is where the potential for abuse of sick leave is the greatest.

We suggest the employer starts off by following a similar approach to what is required for exposure in the workplace, i.e. establish through careful questioning whether there has been a ‘high risk’ exposure: i.e. whether the employee was in close contact (within 1 meter) from a Covid-19 confirmed case, for more than 15 minutes, without PPE.

However, because of the risk of abuse of sick leave, it would be reasonable for the employer to insist that the employee provides substantiating evidence before treating it as paid sick (for example proof that the person who the employee alleges having been in contact with has in fact been tested positive).

If satisfactorily substantiated that there was a ‘high risk’ exposure, the employee should be sent home and it should be dealt with as paid sick leave. If the employee is unable to provide satisfactory evidence of a ‘high risk’ exposure the employee does not have to be paid for his or her absence.

If it has been a ‘low risk’ exposure, the employee can continue working, but subject to self-monitoring and symptom checking (similar to the guidelines for ‘low risk’ exposure inside the workplace).

3. COIDA

Where there is evidence that an employee has contracted COVID-19 as a result of occupational exposure, the employer must report the it as an occupational disease to the Compensation Commissioner in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA) with 14 days of it coming to the employer’s attention. The employer must also lodge a claim for compensation in terms of the directive published in the Government Gazette on 23 July 2020 (the ‘COIDA directive’).

In terms of the COIDA directive, 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 and the person is ‘under investigation’), the guidelines as set out in par 2.1 above apply.

4. Vulnerable employees

The Department of Health issued a document entitled “Guidance on vulnerable employees and workplace accommodation in relation to COVID-19 (V4: 25 May 2020)”. From the outset it must be pointed out that this document does not bind employers, but is merely a guideline.

Vulnerable employees can be described as employees with known or disclosed health issues or comorbidities, or employees with any conditions which may place such employees at a higher risk of complications or death if they are infected with Covid-19, or employees above the age of 60 who are at a higher risk of complications or death if they are infected with Covid-19. (The Guidance provides a more detailed description.)

According to the document the treating doctor /occupational medical practitioner may motivate ‘temporary incapacity’ for the period of the COVID-19 pandemic on the grounds that workplace accommodation is not possible. The document further states that the employee should be able to utilise his/her sick leave if appropriate.

In our view employers do not have to treat a vulnerable employee’s absence as paid sick leave, but may opt to do so if the employee has paid sick leave available and elects in writing to utilize that leave for this purpose. Otherwise such absence will be unpaid (unless the employee utilizes any available accrued annual leave to in respect of the absence). Alternatively, if treating doctor /occupational medical practitioner is willing to motivate the employee’s absence as ‘temporary incapacity’, the employee may be able to claim UIF ‘illness benefits’.

5. Agreed quarantine & Illness benefits

Since the discontinuation of C19TERS on 15 October 2020, the 14 days’ benefits for agreed quarantine in terms of that scheme is no longer available.

However, normal UIF illness benefits for up to 10 days’ quarantine/self-isolation remain available to employees who have exhausted their sick leave. What is needed is for the employer and employee to agree and to submit the prescribed forms (see our Free Downloads page).

6. 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.

(b) Employee has had a ‘high risk’ exposure to someone with COVID-19 inside 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 provisonally 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.

(c) Employee has had a ‘low risk’ exposure to someone with COVID-19 inside the workplace: The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

(d) Employee has had a ‘high risk’ exposure to a COVID-19 positive case outside the workplace: The matter will be treated in a similar way to an employee who has been exposed in a Covid-positive case in the workplace. The employee should self-isolate, but also the employer may insist that the employee provides substantiating evidence before treating it as paid sick leave (for example proof that the person who the employee alleges having been in contact with has in fact been tested positive).

(e) Employee has had a ‘low risk’ exposure to a COVID-19 positive case outside the workplace: The employee is not entitled to sick leave unless the employer decides that the employee must stay at home.

(f) Vulnerable employees: The absence of an employee from work merely due the employee being vulnerable, may be treated as annual leave or unpaid leave. In exceptional circumstances the employer may treat it as paid sick leave, but it remains in the employer’s discretion. If a treating doctor /occupational medical practitioner is willing to motivate the employee’s absence as ‘temporary incapacity’, the employee may be able to claim UIF ‘illness benefits’.

(g) Agreed quarantine & Illness benefits: Since the discontinuation of C19TERS benefits on 15 October 2020, the 14 days’ ‘illness benefits’ for agreed quarantine in terms of that scheme is no longer available. However, normal UIF illness benefits for up to 10 days’ quarantine/self-isolation remain available to employees who have exhausted their sick leave.

7. Conclusion

There is a wide range of Covid-19 related situations that employers face on a daily basis. The health and safety regulations and guidelines have been rather vague with regard to sick leave and there have also been several changes since the start of the pandemic. This has been very confusing.

We have proposed an approach with reference to the current regulations and guidelines as we understand them. While employers should try to be consistent in their approach, there are many variables that could affect the way a particular situation is dealt with. Subscribers are welcome to call us for guidance.

For Covid-19 related documentation, CLICK HERE

Original article by Jan Truter for www.labourwise.co.za

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