Pretoria - Self-isolating, being placed in quarantine and working from home, has become a reality. But what are your rights?
Many worry whether they will get paid during this time and what their rights are if they fall ill.
Leading law firm Adams and Adams’ employment law experts, Irshaad Savant, Aslam Patel and Thandeka Mhlongo, explain this and answer some
important questions
What are the rights in terms of self-quarantine? Do you get special leave, and what is special leave or does the leave come from sick leave?
Generally speaking, for all intents and purposes, individuals on self-quarantine or self-isolation, remain employees.
Whether they will be entitled to their salaries during such time, depends on the reason for being in self-quarantine or self-isolation. If the employer requires the employee to be in self-quarantine or self-isolation, ordinarily, they will be entitled to their salaries during this period.
In terms of the Basic Conditions of Employment Act, if the employee is sick and is therefore in self-quarantine or self-isolation, the employee should be entitled to sick leave for this period. However, the employee may be required to produce a medical certificate in this regard. If the employee’s sick leave is exhausted, the employer may place the employee on unpaid leave, or depending on the terms of the employment contract, tap into the employee’s annual leave.
Subject to the provisions of the Unemployment Insurance Act (Act), an employee may also apply for illness benefits from the Department of Labour, if the employee is sick for longer than 7 days.
If the employee is subjected to self-isolation or quarantine, at the behest of Government, which we understand now applies in certain instances, it is arguable that the employee would not be entitled to his or her salary from the employer.
Are employees eligible for UIF benefits?
As stated above, an employee may be entitled to illness benefits in terms of the Unemployment Insurance Act, if the employee is sick for longer than 7 days.
An employee who loses income due to reduced working time may also qualify for UIF.
The Minister of Employment and Labour recently intimated the possibility of further benefits to employees during self-quarantine for 14 days. He mentioned that this will be treated as "special leave" which will be fully paid on condition that the reason for the quarantine meets the requirements and that an employee can apply for UIF benefits.
The Minister also mentioned that if an employee is required to be quarantined for longer than 14 days as a result of having travelled or been in contact with an infected person, such a leave will also be recognised as "special leave" and that employee will be eligible to apply for UIF benefits.
Notwithstanding the Minister’s above remarks, it is unclear whether employees may claim the special types of leave (mentioned above) from the Department of Labour at this stage. They are not yet sanctioned by law.
What does the newly published Government Gazette Notice, in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA) provide?
On 20 March 2020, the Compensation Commissioner published a notice in the Government Gazette, effective immediately.
The notice outlines certain "occupations at risk". It categorises the occupations as very high exposure risk occupations, high exposure risk occupations, medium exposure risk occupations and low exposure risk occupations. The occupations range from doctors, nurses, ambulance personnel to low risk jobs - that do not require contact with people known to be, or suspected of being infected with Covid-19, nor frequent contact (i.e. within 2 meter of) the general public.
Significantly, the notice permits employees (as defined) to submit claims in terms of COIDA, if the employee contracted Covid-19 "arising out of and in the course of his or her employment". The notice specifically states that it deals with "occupationally-acquired resulting Covid-19 from single or multiple exposures to confirmed cases of Covid-19 in the workplace or after an official trip to high-risk countries or areas previously Covid-19-free individual".
The payments contemplated to employees are (subject to COIDA, the notice, and/or calculations in terms of COIDA) envisaged to employees:
Who are temporary unable to perform the work he or she was employed for (presumably as a result of contracting Covid-19), from the date of diagnosis, but for no more than 30 days;
Permanent disablement (presumably as a result of contracting Covid-19);
Medical aid (in all accepted cases of Covid-19, medical aid shall be provided for a period of not more than 30 days from the date of diagnosis); and
Death benefits (i.e. the reasonable burial expenses, widow’s and dependent’s pensions shall be payable, where applicable, if an employee dies as a result of the complications of Covid-19).
The notice precludes employees "for self-quarantine recommended by a registered Medical Practitioner in accordance with the Department of Health, WHO or international Labour Organisation guidelines", from submitting a claim. It categorises this scenario as "suspected and unconfirmed cases" and provides that the employee’s remuneration in this regard is the employer’s liability (we, however, do not understand the employer’s liability to be beyond the ambit of the Basic Conditions of Employment).
The notice also sets out what documentation is required to submit a claim.
Is there a difference if you have travelled abroad for work or business and now in quarantine in regard to where the leave comes from?
Generally speaking, no.
What do companies have to do, according to law, for their employees during this time?
The Occupational Health and Safety Act places a duty on employers to amongst others, provide and maintain, as far as is reasonably possible, a working environment that is safe and without risk to the health of his employees.
Employers therefore need to take appropriate steps in their workplaces to comply with these obligations.
Can they refuse an employee from working from home?
An employer’s consent is required to work from home, and it should not unreasonably be withheld. Due to the current crisis, more and more employers are requesting their employees to work from home.
Can they force an employee from mingling with the public as part of their job?
Such an instruction would need to be within reason. For example, it may be reasonable if an employer requests its employees not to mingle in a gathering over 100 people, in light of the recent regulations published in terms of the Disaster Management Act (which prohibits a gathering of more than 100 persons).
Subject to medical facts, a blanket rule prohibiting an employee from mingling with the public, at least at this stage, may be considered to be unreasonable.
What happens if they order an employee to work from home, but the person does not have the tools?
In such a case, the employer will still be obliged to pay the employee’s salary.
Can some companies force you to use your annual leave during this time?
Generally speaking, the employer may determine the timing of annual leave and therefore force you to take annual leave during this time. Employment contracts often entitle employers to determine the timing of annual leave.
Can you be forced to be placed on unpaid leave?
It depends on the circumstances. An employee’s consent is generally required to be placed on unpaid leave.
* Please note that these answers do not constitute legal advice and is intended only to provide an overview.