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Leave granted during COVID-19 epidemic
- Stéfan Swart
- March 18, 2020
Our office has been overwhelmed with enquiries in the wake of President Cyril Ramaphosa’s declaration of the national disaster on Sunday evening when he emphasised the measures to be taken by South Africa to combat the spread of the COVID-19 epidemic. The realization is that this epidemic has now hit the shores of South Africa which will have a major impact on our struggling economy but also the everyday lives of all employees in the workplace.
In this newsletter, we do not wish to repeat to you everything that you already known about this Coronavirus and what precautionary measures your Company should take to minimize exposure thereto, but instead we would like to address the consequences of absenteeism of employees from the workplace during the next couple of weeks. No directive has yet been issued by our President on how to address this dilemma and we are therefore only guided thereon by our current labour legislation and jurisprudence.
Leave
Labour legislation does not make provision for emergency sick or annual leave for circumstances such as the present. Any absence from the workplace without permission must however still be justified by the employee by means of a medical certificate in the event that the employee has been absent from work for more than two consecutive working days.
Employees should however be encouraged to disclose general symptoms of a cold or flu to its HR Department without delay. Such employees should be required to stay at home until such time as a registered medical practitioner has declared them fit to return to work. They will however still be required to justify their absence by means of a medical certificate. Should the employee be able to justify absence from workplace by means of a medical certificate, the period of absence will be paid from the employee’s sick leave entitlement. Should the employee not have accrued sick leave, such absence will unfortunately be without any remuneration and the principle of “no work, no pay” will apply. This general principal may however be waived by the employer taking the current epidemic into account.
School Closure
Employers by now already know that public schools will be closing today and only reopening (depending on how South African contains this epidemic) on 14 April 2020. For many working parents, this may be problematic as even aftercare schools/facilities will follow suite. This will therefore place an enormous burden on parents having to care for their children but at the same time having to fulfil their employment duties whilst being at work.
Again, our legislation does not provide for any special leave to be granted to parents under these circumstances. However, employers must accommodate their employees whose children must be looked after during this period. One example would be to assist employees to work at home and equip them with communication mediums to enable them to perform their work whilst having to care for their children.
On 17 March 2020 further measures were implemented to temporary close all Universities in South Africa which may also impact working parents having to care for their children over this period.
Temporary Layoff
As in the People’s Republic of China and Italy, South Africa may also be faced with the daunting realization that many of its employers running factories should need to temporally close whilst still being required to pay employees their normal salaries. This may result in employers being unable to continue with its normal business activities and would then be forced to consider temporarily laying-off employees. Applicable Bargaining Council Main Agreements must be considered where the employers’ business falls under the scope of such council. Such layoff is normally unpaid and as alternative to retrenchment.
FORCE MAJEURE DUE TO COVID-19 EPIDEMIC VS THE LAWS OF CONTRACTS
The Coronavirus has and will for the new couple of months have a detrimental impact on not only the global economy but especially in South Africa who is already facing major economic downturns with very little investment growth Although South Africa’s combat strategy to prevent the spread the Coronavirus may possible be regarded as a step in the right direction to protect lives and continuous infections, it most definitely disrupt organisations’ operational structures, effect profitability and halt production. With that in mind, organisations should consider any potential legal risks and how to protect themselves against them.
Since the President, Cyril Ramaphosa, on Sunday evening declared a State of Emergency in South Africa wherein he emphasised the measures to be taken to combat the spread of the COVID-19 epidemic, disruption has been caused to many organisations in South Africa. Since then, many organisations closed with only key staff managing the core structure, supply chains have been disrupted, majority of ports and borders have been closed and travel restrictions being applied. Under these circumstances, we should ask ourselves whether force majeure claims may arise.
Force majeure refers to a superior force, or unforeseen event, beyond the control of a State, making it materially impossible for parties to fulfil an obligation and is related to the concept of a State of Emergency. Force majeure clauses in contractual arrangements are often included in commercial contracts in case certain circumstances prevent the fulfilment of parties’ contractual obligations. These clauses operate to delay or absolve one or both of the parties to a contract of all or part performance of their obligations on the occurrence of certain events (such as Acts of Gods, Natural disasters, Epidemics, War, strikes etc.) which are outside their control. Whether or not the Coronavirus will constitute a force majeure event will depend on the relevant contractual wording and interpretation as embodied in the specific contract. The party seeking to claim force majeure should prove that the Coronavirus falls within the contract wording and that non-performance was a result of this epidemic. It must also show that it had no alternative remedy under the prevailing circumstances.
Claim force majeure to stay and hold over performance of one’s contractual obligations would have serious consequences and we advise parties to carefully consider the contractual wording of such agreement before making this drastic step.