Legal Talk

Navigating the workspace during the Covid-19 pandemic

South Africans as indeed the rest of the world have to adjust to the new "normal" as the infectious spread of the Covid -19 outbreak continues in its relentless path. Disruptions in our usual daily routines, our workspace and the economy are some of the changes we have to deal with.

The novel strain of the coronavirus which first started in Wuhan in China, escalated rapidly to other parts of the world. Europe and in particular Italy being one of the hardest hits countries of this invisible but potentially deadly virus. People are encouraged to stay indoors, wash their hands frequently, not to touch their faces and not to mingle, so as to limit the spread of the illness.

Travel abroad whether it be for business or personal, is strongly discouraged as is local travel. Social etiquette practices and personal hygiene have been redefined. Social distancing is now very much a thing. The symptoms of Covid-19 appear similar to a cold or flu and affects the respiratory system. It is highly contagious and in some cases, can cause death to those whose immune system is already compromised, for example people living with HIV and AIDS or any other underlying co-morbidities.

The elderly is also at great risk. In terms of the National Disaster Act which was promulgated on 18 March 2020, drastic but very necessary steps are being taken to ensure the health and well-being of all of society is maintained and preserved. I received a number of queries from both employers and employees wanting clarity around the issue of staff taking sick leave and being placed in quarantine during this Covid-19 crisis.

The Basic Conditions of Employment Act regulates the number of sick leave days which an employee may take. Sick leave works on a 36 (as opposed to a 12) month cycle. This means that employees who worked for the same employer for 3 years are entitled to sick leave which is calculated as being equal to the number of days they would have worked during a period of 6 weeks.

So, for example, an employee who works a 5-day week would be entitled to 30 days' sick leave. A word of caution though. Unless there's a sound medical reason to support the taking days off as sick leave, any abuse of the sick leave could very well justify a disciplinary hearing being brought against an employee. If an employee does not go to work for 2 consecutive days in an 8- week cycle, and fails to produce a medical certificate to explain the reason for being absent from work, the employer is not obliged to pay him/her for the days not worked.

A medical certificate must be signed by a medical practitioner, indicating that the reason for non-attendance at work was due to an injury or illness. Generally-speaking unless a doctor issues a medical certificate to an employee, any quarantine imposed by the employer should not come off the employee's sick leave.

An employee who opts to self- isolate or go into voluntary quarantine as a precautionary measure, is technically not sick and sick leave will not be allowed. The risk off course is that an employee who should not be in contact with others may be forced to come to work, thereby putting more lives at risk.

During this unprecedented and turbulent period, employers are encouraged to consider allowing their staff to work from home, thereby minimizing the risk of infection. An employee who was on sick leave due to Covid-19 should only be allowed to return to work, after getting an all clear from a medical practitioner.

The World Health Organization recommends that any person who is known to have the virus to be quarantined for a period of 14 days.

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