As the country moves from Alert Level 4 to Alert Level 3 on 01 June 2020 the number of COVID-19 infections is expected to rise. The effect of this is that many employees will not be able to work and there will be disruption in production anywhere from one or two days to an excess of 14 days. So who is liable to bear the cost?
The Minister of Employment and Labour issued a directive in respect of health and safety in the workplace and clause 23 of this directive speaks directly to this question.
Clause 23 states the following:
23. If a worker presents with those symptoms [fever, cough, sore throat, redness of eyes or shortness of breath] or advises the employer of these symptoms, the employer must –
23.1 not permit the worker to enter the workplace or report for work; or
23.2 if the worker is already at work immediately-
23.2.1 isolate the worker, provide the worker with a FFP1 surgical mask and arrange for the worker to be transported in a manner that does not place other workers or members of the public at risk either to be self-isolated or for a medical examination or testing; and
23.2.2 assess the risk of transmission, disinfect the area and the worker’s workstation, refer those workers who may be at risk for screening and take any other appropriate measure to prevent possible transmission;
23.3 ensure that the worker is tested or referred to an identified testing site;
23.4 place its employee on paid sick leave in terms of section 22 of the BCEA or if the employee’s sick leave entitlement under the section is exhausted, make application for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme under regulation 10(8) of the Regulations promulgated in terms of section 27(2) of the Disaster Management Act.
With this in mind, lets consider a few scenarios:
- Mr A goes to the doctor of his own volition because he suspects he might have Covid-19, no test is conducted but the doctor books him off on sick leave.
- Mr A goes to the doctor of his own volition because he suspects he might have Covid-19, a Covid-19 test is conducted, the result of which is negative. It takes 2 days to get the test result, during which time Mr A stays at home.
- Mr A goes to the doctor of his own volition because he suspects he might have Covid-19, a Covid-19 test is conducted, the result of which is positive.
In all of these scenarios Mr A does not advise his employer that he has any symptoms associated with COVID-19 but goes to a doctor by his own volition and thereafter reports to work following his time at home. Mr A will only be entitled to paid sick leave if he has sick leave days available to him, in terms of section 22 of the Basic Conditions of Employment Act, and provided he produces a valid medical certificate from the doctor. However, if he has exhausted his sick leave, it will be taken as unpaid.
So what about these scenarios?
- Mr A is not feeling particularly well but he does not go to the doctor, instead he reports for work. When presenting himself to start his shift his temperature is above 37.5 degrees so he is sent to be tested or referred to a testing site.
- Mr A passes his temperature test but he has a bad cough. He is denied him entry to the premises and is sent for testing or referred to a testing site. Mr A states that he has reported for duty in good faith and the only reason he is not permitted to work is because his employer will not permit him to.
- Mr A fails his temperature test. He is sent for testing or referred to a testing site:
- At the clinic, no testing is performed and Mr A is told to go home and rest for 3 days.
- At the clinic, no testing is performed and Mr A is told to go home and rest for 14 days.
- At the clinic, a Covid-19 test is performed, the result of which is negative. It takes 10 days to get the test result, during which time Mr A stays at home.
- At the clinic, a Covid-19 test is performed, the result of which is positive. It takes 10 days to get the test result, during which time Mr A stays at home.
In all these scenarios Mr A presents himself for work at which time he is found to have symptoms associated with COVID-19 or he advises his employer that he has such symptoms. The employer, in accordance with clause 23, must then place Mr A on paid sick leave and if Mr A’s sick leave has been exhausted, to apply for an illness benefit in terms of clause 4 of the Directive on COVID-19 Temporary Employer Relief Scheme.
So why can’t an employer apply for an illness benefit when Mr A, by his own volition, goes to a doctor? The detail lies in clause 4 of the COVID-19 Temporary Employer/Employee Relief Scheme. In order to apply for an illness benefit the employee must provide a confirmation letter from the employer as proof that he was in an agreed period of isolation in order to qualify for the benefit. Mr A, in the first set of scenarios, was not in an agreed period of isolation and therefore does not qualify for the illness benefit.