Opinion on a Covid-19 Positive Employee

1. Sick leave

According to the Health and Safety directive published on 29 April 2020 (the ‘H&S directive’), an employee must be placed on sick leave in terms of section 22 of the Basic Conditions of Employment Act (BCEA) if –

• The employee presents with symptoms of COVID-19; or
• The employee advises the employer of those symptoms.

The above approach is confirmed by the Consolidated COVID-19 Directive on Health and Safety in the workplace (published on 4 June 2020), which has replaced the Health and Safety Directive of 29 April. However, the Consolidated Directive adds a number of additional requirements, i.e. that the employer must –

• Not permit the employee to enter the workplace or report for work; or
• If the employee is already at work, immediately
  • isolate the employee, provide a surgical mask, arrange for the worker to be transported in a manner that does not place other workers at risk; the employee must be self-isolated or referred for a medical examination or testing; and
  • assess the risk of transmission, disinfect workstation, undertake contact tracing and take any other appropriate measure to prevent possible transmission.

The Consolidated Directive also seems to have introduced a new category of ‘sick leave’. Where an employee has been in contact in the workplace with another employee who has been diagnosed with COVID-19, the employer must assess the employee’s exposure in accordance with the Department of Health’s guidelines. If it is a ‘high risk exposure’ (according to the Guidelines for symptom monitoring and management of essential workers for COVID-19 related infection of 19 May 2020), the employer must place the employee on sick leave in terms of section 22 of the BCEA.

2. Proof of illness

There is clearly the potential for abuse if an employee is entitled to stay away from work after merely ‘advising’ the employer that he or she has COVID-19 symptoms.

The employer should be entitled to require proof of illness in terms of section 23 of the BCEA. In the event that an employee is absent for more than 2 days (which will invariably be the case in these circumstances) an employer is not required to pay the employee unless the employee produces a valid medical certificate.

The employee will ultimately either be diagnosed as having contracted COVID-19, or not. If the employee produces a valid medical certificate the employer will be obliged to pay if the employee has sick leave available to him or her.

The potential for abuse of sick leave in case of ‘high risk’ employees under the Guidelines for symptom monitoring is somewhat less. It is not the employee or a medical practitioner who decides that the employee should not work, but the employer. As it is the employer who decides to send the employee home, the employee should arguably be entitled to paid sick leave without having to produce a valid medical certificate. If the employee turns out to have no illness whatsoever, it should make no difference.

According to the Guidelines the employee must self-monitor and may be required to return to work “if asymptomatic through day 7, following a negative RT-PCR on day 8”. Ultimately it is within the employer’s control, to some extent, to determine when the employee should return to work.

3. Return to work

An employee who has been diagnosed with COVID-19 must be isolated in accordance with the Department of Health Guidelines. The employer may only allow the employee to return to work on the following conditions:

• The employee has completed the mandatory 14 days of isolation;
• The employee has undergone a medical evaluation confirming fitness to work.
• The employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette are strictly adhered to by the employee;
• The employer closely monitors the employee for symptoms on return to work;
• The employee wears a surgical mask for 21 days from the date of diagnosis.

Where an employee has presented with symptoms but has subsequently tested negative, it is not necessarily safe for the employee to return to work. It would be prudent for the employer to insist on a medical evaluation confirmation that the employee is fit to return to work. Where recovery is slow an employee may be absent for an extensive period.

4. COIDA and sick leave

Where there is evidence that an employee has contracted COVID-19, the employer must lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA). This is in accordance with a notice published in the Government Gazette on 23 March 2020 (the ‘COIDA notice’).

In terms of the COIDA notice, payment for total temporary disablement will be made by the Compensation Fund for as long as the disablement continues, but not for a period exceeding 30 days.

In suspected or unconfirmed cases, a medical practitioner may recommend self-quarantine. According to the COIDA notice the employer is responsible for remunerating the employee in these circumstances.

In our view the employer’s obligation to pay is based on the assumption that the employee has sick leave available to him or her. To the extent that it is not, UIF illness benefits in terms of the COVID-19 directive are accessible to the employee.

On 20 March 2020 the Compensation Commissioner issued a Notice on Compensation for Occupationally-Acquired Noval Corona Virus Disease (Covid-19). The Notice that came into effect on the 20th of March 2020 recognized occupationally acquired Covid-19 as a disease under COIDA. In terms of this Notice the reporting must proceed as follows;

• The employer’s report of an occupational disease;
• Notice of an occupational disease and claim for compensation;
• Exposure and medical questionnaire;
• First medical report in respect of an occupational disease, indicating that the claim is for a code ICD-10 (COVID-19);
• Exposure history and/or another appropriate employment history containing information that may be helpful to the Compensation Commissioner;
• A medical report on the employee’s symptoms, detailing the history and establishing the diagnosis of COVID-19, laboratory results and chest X-Rays, where appropriate, or any other information relevant to the claim;
• Progress medical reports in respect of each consultation;
• Final medical report when the employee’s condition has reached maximum medical improvement;
• An affidavit by the employee if the employer cannot be traced or will not timeously supply the report of the occupational disease, where applicable.

Online claims should be submitted to the Compensation Fund (This email address is being protected from spambots. You need JavaScript enabled to view it.); Rand Mutual Assurance (This email address is being protected from spambots. You need JavaScript enabled to view it.) and Federated Employers Mutual (This email address is being protected from spambots. You need JavaScript enabled to view it.). The claim must reference the ICD-10 code – U07.1. On processing the claim, the medical officers in the Compensation Commissioner’s office are responsible for the assessment of the claim and will confirm the acceptance or rejection of the claim.

5. Summary of sick leave and other benefits

An employee’s entitlement to paid sick leave and other benefits in the COVID-19 context:

• Employee presents with of COVID-19 symptoms: The employer must place the employee on paid sick leave in terms of the BCEA. The employer may require the employee to produce a valid medical certificate before paying the employee.
• Employee has had contact with a COVID-19 positive case: The employer and employee may agree for the employee to go into self-isolation for 14 days. This is not regarded as sick leave in terms of the BCEA. However, if the employee is subsequently tested positive for COVID-19 or produces a medical certificate for another illness, the absence should be converted to paid sick leave.
• Employee has had a ‘high risk’ exposure to someone with COVID-19 in the workplace: Where an employer makes an assessment that the employee has had a ‘high risk’ exposure to COVID-19 at work, the employee should be placed on paid sick leave. The employee does not have to produce a medical certificate. However, if COVID-19 is later confirmed, the absence should not be dealt with as sick leave in terms of the BCEA, but rather as a claim for compensation in terms of COIDA.
• Employee suspected by medical practitioner of having contracted COVID-19 in the workplace: If a medical doctor suspects an employee of having contracted COVID-19 arising out of or in the course of employment, the medical practitioner may recommend self-quarantine. The employee would be entitled to paid sick leave. However, if COVID-19 is later confirmed, the absence should not be dealt with as sick leave, but rather as a claim for compensation in terms of COIDA.