23 March 2020 by Zelda Venter
Pretoria – Self-isolating, being placed in quarantine and working from home has become a reality since the outbreak of the coronavirus. But what are your rights?
Many worry whether they will get paid during this time and are not sure what their rights are.
Leading law firm Adams and Adams’s employment law experts Irshaad Savant, Aslam Patel and Thandeka Mhlongo have explained this:
Generally speaking, 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.
In terms of the Basic Conditions of Employment Act, if the employee is sick and is therefore in self-quarantine or self-isolation, ordinarily the employee will be entitled to sick leave for this period.
However, the employee may be required to produce a medical certificate. 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, an employee may also want to consider applying for illness benefits from the Department of Labour if the employee is sick for longer than seven days.
If the employee is subjected to self-isolation or quarantine, at the behest of the government, which now applies in certain instances, it is arguable that the employee would not be entitled to his or her salary from the employer.
An employee who loses income due to reduced working time may also qualify for UIF.
Minister of Employment and Labour Thulas Nxesi intimated the possibility of further benefits to employees during self-quarantine for 14 days.
He mentioned that this would be treated as “special leave” which would be fully paid on condition that the reason for the quarantine meets the requirements and that the employee could apply for UIF benefits.
The minister has also stated 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 leave will be recognised as special leave and that the employee will be eligible to apply for unemployment insurance benefits”.
The minister also mentioned that if an employee was required to be quarantined for longer than 14 days as a result of having travelled or been in contact with an infected person, such leave would also be recognised as “special leave” and that the employee would be eligible to apply for UIF benefits.
Notwithstanding the minister’s remarks, it is unclear whether employees may claim the special types of leave from the Department of Labour at this stage. They are not yet sanctioned by law.
On Friday the Compensation Commissioner published a notice in the Government Gazette with immediate effect. The notice outlines certain occupations at risk. It categorises the occupations from very high risk to low-risk exposure.
The occupations range from doctors, nurses and ambulance personnel to low risk jobs – that do not require contact with people suspected to be infected with Covid-19 or frequent contact with the general public.
The notice permits employees to submit claims in terms of the Occupational Injuries and Diseases Act if employees contracted Covid-19 arising from their employment.
The notice specifically states that it deals with “occupationally acquired Covid-19 resulting from single or multiple exposures to confirmed cases in the workplace or following a work trip to high-risk countries”.
The notice precludes employees for self-quarantine recommended by a registered medical practitioner in accordance with the Department of Health, World Health Organisation 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 is the employer’s liability.
Generally speaking, there is no difference if a person has travelled abroad for leave or work and is now in quarantine, in regards to where the leave comes from.
Employers also do have an obligation, especially during this time, to ensure the safety of their employees. The Occupational Health and Safety Act places a duty on employers to among others, provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees, the experts said.
Companies, therefore, need to take appropriate steps in their workplaces to comply with these obligations. An employer’s consent is required to work from home, but due to the current crisis, more and more employers are requesting their employees to work from home. In cases where an employee is forced to work from home, but does not have the tools, the employer will still be obliged to pay the employee’s salary.
On whether employers can force workers to take annual leave during this time, the experts said, generally speaking, the employer may determine the timing of annual leave and therefore force one to take annual leave.
Source: IOL at https://www.iol.co.za/pretoria-news/coronavirus-as-an-employee-what-are-your-rights-45388861