Sick leave and self-isolation – a guide for employers

1. An employee tests positive for COVID-19

• If an employee is absent for two or more days, an employer is entitled to require the employee to produce a medical certificate to prove that the employee is ill. However, before granting sick leave to an employee who has tested positive for COVID-19, an employer must first ascertain whether the employee acquired the virus at work.
• When an employee acquires the virus at work, the employer must lodge a claim in terms of the Notice on Compensation for Occupationally-Acquired COVID-19 (the COIDA Notice)which was published on 23 July 2020. In these circumstances, sick leave is not used for the period of absence and the employee is entitled to compensation for a period of up to 30 days after diagnosis (or for a longer period at the discretion of the Compensation Commissioner). The employer is responsible to pay at least 75% of the employee’s salary for the first three months and may then claim a reimbursement from the Compensation Commission.
• When an employee does not acquire the virus at work, the employee may take sick leave if their absence is supported by a medical certificate.
• If an employee’s sick leave is exhausted, the Consolidated COVID-19 Direction on Health and Safety in the Workplace (the Directive) requires employers to apply for the TERS UIF illness benefit. If an employee is absent for more than seven days, the employee may also apply for UIF illness benefits in terms of sections 19 to 23 of the Unemployment Insurance Act 2001. Any sick leave granted to the employee is taken into account when calculating the illness benefit.
• In terms of the Directive, an employee who has tested positive for the virus must remain in self-isolation for a mandatory period of 10 days before being allowed to return to the workplace
• If an infected employee was present at the workplace before testing positive, then the employer must identify all of the employees who may have come into contact with the infected employee, and must assess the risk of exposure in respect of each of the identified employees.
  • In terms of the National Institute of Communicable Diseases (NICD) website, positive individuals are most infectious from two days before the onset of symptoms to 14 days thereafter. Employers should use the infectious period as a guideline to assess the risk of exposure at the workplace.
  • Where the risk of exposure is low, the identified employees may be permitted to continue working, provided that there is strict adherence to the workplace control measures. The company must monitor the symptoms of these employees for a period of 14 days;
  • Where the risk of exposure is high, the employees must be placed in self-isolation for a period of 14 days. These employees must be placed on sick leave during this period. This scenario is discussed under point 2 below.

2. Where an employee is at high risk of exposure to COVID-19 at work

• When an employee is at a high risk of being exposed to an infected fellow employee, the Directive requires the employer to place the employee on paid sick leave for a period of 14 days. The employee may apply for the TERS UIF illness benefit or the UIF illness benefit, as explained above, to preserve sick leave or where the employee’s sick leave is exhausted.
• An employer does not have the discretion to allow such an employee to return to work earlier than the expiry of the 14 day period even if, for example, the employee undergoes a COVID-19 test and tests negative. The 14 day self-isolation period is a statutory requirement which does not leave room for an employer’s discretion. The NICD website states that false negative results are common during the early stages of infection, and a self-isolation period of 14 days is recommended even if test results are negative.
• If an employee tests positive for the virus after being in close contact with an infected fellow employee at work then the employer must lodge a claim in terms of the COIDA Notice.

3. Where an employee is at high risk of exposure to COVID-19 outside of the workplace

• The Directive does not stipulate whether an employee at high risk of exposure outside the workplace must be placed on paid sick leave. However, the Occupational Health and Safety Act 1993 imposes a general duty on employers to take reasonable steps and on employees to take reasonable care, to ensure a healthy and safe working environment.
• A person who has come into close contact with an infected individual presents a risk to the health and safety of the workplace. In these circumstances, there is a legislative obligation on the employee to self-isolate and on the employer not to permit the employee to return to the workplace. Therefore, if the employee is unable to work from home and their leave options have been exhausted, then the employer may invoke the ‘no-work no-pay’ principle as confirmed in the recent decision of MacSteel Service Centres SA (Pty) Ltd v NUMSA and others.
• If a member of an employee’s household has tested positive for the virus and the employee is in continuous close contact with the infected person, then the employee should not be allowed to return to the workplace as this presents a serious health and safety risk, and the no-work no-pay principle applies.
• In this case, an employee is only entitled to paid sick leave if a medical certificate is produced, unless the employer agrees to grant sick leave or annual leave. If the employee is placed in self-isolation by agreement with the employer, then the employee is entitled to TERS UIF illness benefits for a period of up to 14 days in the absence of a medical certificate.

4. An employee displays COVID-19 related symptoms (without having been tested)

• When an employee informs an employer that the employee is experiencing COVID-19 related symptoms:
  • The employer may not allow the employee to report for work or to enter the workplace and must place the employee on paid sick leave.
  • The Directive does not specify the duration of self-isolation in these circumstances so the employer is entitled to require the employee to produce a medical certificate before being under an obligation to pay for the period of sick leave, if the absence endures for longer than two consecutive days. Employers generally require medical certificates to be produced in order to prevent the abuse of sick leave.
• If an employee presents with COVID-19 related symptoms while at the workplace:
  • The employee must be isolated immediately and transported to self-isolation, medical examination or testing in a manner that does not present a risk of exposure to other employees and members of the public.
  • The Directive requires symptomatic employees to be placed on paid sick leave, but does not specify the duration of sick leave in these circumstances. The employer is entitled to require the employee to produce a medical certificate before being paid for the period of sick leave in order to prevent the abuse of sick leave rights.

Murray Alexander | Director | mail me |	Jenine Naidu | Associate Designate | mail me |
| Norton Rose Fulbright South Africa |