Much has been said the past couple of months regarding, for instance, Justified Sick Leave; Reduced Work Time and the UIF; COVID 19 Regulations as well as an e-data article regarding the Refusal to Self-Isolate and dismissal. It will be worth your while to read these articles again and to empower yourselves with the advice and guidelines provided. Some of the questions we are receiving from you relates to responsibility in terms of paid sick leave, claims from the Unemployment Insurance Fund or being exposed to COVID-19 at the workplace. Where does the buck stop? With you as employee or with your employer?
The COVID-19 pandemic has brought about a plethora of disturbances to life as we know it, prompting the need to readjust to the new abnormal norm. The readjustment process is never easy and as is the case with new and unfamiliar circumstances, often very uncomfortable due to new challenges encountered and the need to develop ways to deal with these challenges. In short, the COVID-19 pandemic did not come with a textbook!
Occupationally Acquired Covid-19
For a better understanding, the Compensation Commissioner has published a notice on ‘Occupationally Acquired Covid-19’ in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). The Notice defines ‘Occupationally Acquired Covid-19’ as a disease contracted by an employee arising out of and in the course of his or her employment.
With the ‘third wave’ rushing through South Africa like a hurricane, we are faced with an alarming increase in infection rates. The Delta strain, so ‘they’ say, is far more severe than the previous strain or version of the virus. Finding ourselves back in an adjusted Level 4 the challenges are not necessarily new, just more intense.
Two of the most common questions raised are ‘what is the position if you come into contact with a person that has tested positive for the virus?’ and ‘what is the position if you test Positive for COVID-19?’ At first glance you might think that you know the answers and that this is old news. Yet, it becomes more complex. Questions that should be raised are ‘when were you exposed?’ and ‘where were you exposed?’
Let’s answer these two questions in the following two scenarios:
Scenario 1: At the Work Place
According to the ‘Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces’ (Consolidated Direction), if you were in contact at the workplace with one of your colleagues who tested positive for COVID, your employer must assess the situation. If the exposure or contact was high risk and you are likely to contract the COVID-19 virus, your employer must put you on paid sick leave for a 10 day period, if you still have sick leave available.
If your sick leave has been exhausted, you may apply for sick leave, with your employer’s assistance, from the Unemployment Insurance Fund.
Scenario 2: Outside of the Work Place
The Consolidated Direction treats this scenario differently than the one set out above. In this scenario you are not entitled to paid time off/sick leave. According to the Consolidated Directive your employer, in taking reasonable measures to ensure a safe working environment, must require that you self-isolate to mitigate risk to other employees.
You might be able to work from home, in line with your employer’s operational requirements, during this self-isolation period. If you cannot work from home, the self-isolation period will by default be unpaid. The Labour Court confirmed on 3 June 2020, in the case of Macsteel Service Centres SA Pty Ltd v NUMSA (J483/20), that your employer may invoke the ‘no-work no-pay’ principle when the operational requirements does not provide for a work from home scenario. The alternative to ‘no-work no-pay’ is when you are booked off by a Medical Practitioner, with a valid Medical Certificate.
You contracted COVID-19
Scenario 1: At the Work place
In terms of the Notice on Compensation for Occupationally-Acquired COVID-19, when you contract the virus at your workplace, your employer must lodge a claim in terms of COIDA. You are not placed on sick leave per se, but the incident is treated as an injury on duty where your employer must pay you at least 75% of your wages for the first three months.
Scenario 2: Outside of the Work Place
Should you however acquire the virus outside of the workplace, you will have to obtain a valid Medical Certificate and the time off will be regarded as sick leave. There are some employers who accept the ‘Positive Outcome’ of the COVID test as a sick note and there are employers who may allow you to work from home if your symptoms are not severe. These are internal operational arrangements and outside the scope of any published Direction.
After all has been said and done, you will agree that where and when you were exposed to a COVID positive person, or where and when you acquired the virus will determine the route to be followed. Important to know, where does the BUCK stop?
Please familiarise yourselves again with the benefits provided by MISA, especially the Sick, Accident and Maternity Benefit Fund and the COVID-19 conversion benefits. You will find the information here: https://www.misa.org.za/edata-may-2021/
MISA is only a phone call or an e-mail away!
Kindly utilise the following e-mail addresses and links for assistance during this time:
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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