We have been inundated with enquiries pertaining to the president’s announcement of a state of emergency pertaining to the Coronavirus in South Africa. As our president indicated, the virus is now spreading internally, and the possibility thereof is in all workplaces in South Africa is now a reality.
The purpose of this short message is not to repeat everything already known about the virus and precautionary measures that may be taken, but instead to answer a couple of questions pertaining to absence from work during the next couple of weeks, possibly months.
Labour legislation does not make provision for emergency sick or annual leave for instances such as the present. Any absence from the workplace without permission must however still be justified by the employee by means of a medical certificate in the event that the employee has been absent from work for more than two consecutive working days or on the third occasion during an eight week cycle.
Employees should however be encouraged to disclose general symptoms of a cold or flu to the HR Department without delay. Such employees will be required to stay at home until such time they are fit to return to work. They will however still be required to justify their absence by means of a medical certificate issued by a registered medical practitioner. Should the employee be able to justify absence from work by means of such a certificate, the period of absence will be paid from the employee’s sick leave entitlement. Should the employee not have sufficient sick leave available, such absence will unfortunately be without any remuneration or benefits, unless annual leave is available for payment purposes or if otherwise decided by the employer.
Employers should also take note of the fact that schools will close this Wednesday until after Easter weekend. The aforementioned comes as a surprise to employees that have school going children below the age of 18 that will now have to be accommodated during the extended school holiday. Again, no special leave is applicable for the aforementioned, but employers will be required to reasonably accommodate the absence of parents whose children must be looked after during this period, especially applicable for young children.
Uncompleted Disciplinary Incapacity Proceedings
Where disciplinary action or incapacity proceedings are interrupted as a result of the presence of the virus in a workplace or due to the absence of the employee or witnesses; employers are advised to notify the employee in writing of its intent to continue with such disciplinary action or incapacity proceedings when circumstances have normalised.
Incapacity proceedings for employees that are infected by the virus is not recommended. The Coronavirus is a temporary medical condition with the employee most probably being able to return to the workplace later, fit for normal duty.
Where it is impossible to continue with normal business activities, employers will be required to temporarily lay-off employees. Due consideration must however be given to relevant Bargaining Council Main Agreements where the business falls under the scope of such council. Such layoff is normally unpaid and as alternative to retrenchment.
We are still awaiting guidance from the CCMA pertaining to matters that are currently on the roll and that are to be determined in a place where more than hundred people will gather. It is our opinion that the CCMA will have to introduce drastic measures in this regard.
We wish you all the best during this trying period and pray that you, your loved ones and employees remain unaffected.
Jan du Toit can be contacted at firstname.lastname@example.org.