Wednesday, January 19

What to do with employees on exhausted sick leave regarding vacation …


Sick leave has been taken at an unprecedented rate over the past year. This raises a number of pertinent questions, including: What should employers do if their employees have exhausted all of their right to paid sick leave due to Covid-19 infection or exposure and yet request leave during the vacation period?

Is the position different where the employee hired or was exposed to Covid-19 in the workplace? In terms of articles 6 (3) (b) (iii) and 6 (7) (c) of the Consolidated Directorate on Occupational Health and Safety Measures in Certain Workplaces, dated June 11, 2021, employees excluded from the workplace due to Covid-19 symptoms or exposure will use their paid sick leave rights under Basic Employment Conditions Act 75 of 1997 (BCEA) during periods of absence.

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When sick leave under the BCEA has been exhausted, employees can apply for sickness benefits in terms of Unemployment Insurance Law 63 of 2001. Absence from work due to exposure to Covid-19, the effects of prolonged Covid or any other illness may result in prolonged absence of employees from the workplace.

Employers may be tempted to reject annual leave requests from employees who have been absent from work due to health problems and who have exhausted their right to sick leave under the BCEA.

However, it is neither reasonable nor fair to select which employees may or may not enjoy their annual leave rights on the basis of their health or on the basis that an employee has exhausted their right to sick leave, as the right to leave annual is different from the right to sick leave.

In addition, and in terms of the BCEA, employees have a minimum number of annual vacation days per year in recognition of the importance of having free time outside of work.

Despite the importance of annual leave, it is still reasonable and legal for an employer to reject an employee’s request for leave based on their operational needs, such as when the timing of the leave will have a detrimental effect on the business or if the business is short. personal at the time.

Case of law

It has long been established that employees do not have the right to take annual leave based solely on when it is convenient for them. The court in Ludick v Rural Maintenance [2014] 2 BLLR 178 (LC) reiterated that section 20 (10) (a) of the BCEA provides that employees take their annual leave at a time mutually agreed between the employer and the employee.

Depending on their operational needs, employers can block particularly busy periods of the year, during which employees will not be allowed to take annual leave. This is permissible considering section 20 (10) (b) of the BCEA, which states that an employer can determine the moment when leave can be taken, when no agreement is reached.

Employers may, in appropriate circumstances, reject an employee’s request for annual leave, provided that the employee is not being selected for different treatment because he may have taken all his sick leave rights, and furthermore, the employee is not impeded to use your right to annual leave in the annual leave cycle or within six months after the end of the cycle.

There is no distinction between employees who hired Covid-19 at work or any other employee when considering the reasons for granting or refusing annual leave.

Gillian Lumb and Amy King are Cliffe Dekker Hofmeyr Labor Law Experts


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