COVID-19 sick leave? Keep the Disaster Management Act in mind

We have undoubtedly reached our fill of COVID-19-related stories, regulations, warnings and lockdown rumours. But, warns Inge Labuschagne, Head of Legal at Styde Consult, we should not forget that we are still under the rules of the Disaster Management Act, which have certain implications for employers and employees.

Inge Labuschagne

“The regulations of the Disaster Management Act, especially clauses 27 to 31, have specific rules for workers who present with COVID-19 symptoms, those who are diagnosed with COVID-19 and those who come into contact with these workers.

“The Act requires the employer to follow strict rules in these circumstances. A failure to do so could place the employer at risk of legal action,” says Inge.

Inge Labuschagne
Inge Labuschagne, Head of Legal at Stryde Consult.

The first clause, number 27, says that workers who present with COVID-19-related symptoms, and who advises the employer, should be placed on 10 days’ paid sick leave in line with Section 22 of the Basic Conditions of Employment Act (BCEA). Section 28 prescribes the same 10 days for employees who are diagnosed with COVID-19.

This means that employees get the same treatment – paid sick leave – regardless of whether they actually have the virus or simply present the symptoms. The Act says that employees who have exhausted their sick leave should still receive the same treatment and that the employer should apply for an illness benefit under the Temporary Employer / Employee Relief Scheme (TERS).

For workers who have been exposed to the infected employee, or who present the symptoms, the Disaster Management Act looks to the employer to decide if these employees can continue working or not. If the risk is low (Clause 30), the exposed employees may continue working, while using a cloth mask. The employer must monitor this person for eight days.

In instances where the exposure to a COVID employee was “high risk”, as per clause 31, the worker must also isolate for 10 days, using the same paid-for sick leave as the sick employee.

“There is a general consensus among labour law advisers that high-risk exposure should not be limited to the workplace and that employees must inform the employer immediately if they have come into contact with someone who presents with symptoms or have the virus, be it in their family or circle of friends,” says Inge.

Once informed, the employer should “take such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment”, as stated in the act.

“There is undoubtedly an opportunity for employees to abuse this system, since the presentation of symptoms are treated the same as actually having the virus. It is, however, manageable, since the employer does the risk assessment and then decides whether or not to send the employee home for the 10 days of isolation.”

“On the flipside, one could argue that since it is the employer’s decision to send someone home, such person would not need to present a sick note to be entitled to receive 10 days of paid sick leave,” says Inge.

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