With the current Corona outbreak, our offices have been inundated with inquiries regarding employees rights to take leave.
In South Africa, the Basic Conditions of Employment Act (“BCEA”) provides protection to employees by setting out the very basic terms of employment, which includes minimum paid for leave periods for employees who work more than 24 (twenty four) hours per month. The BCEA provides for various types of paid for leave for employees which includes, inter alia:
sick leave;
annual leave;
family responsibility leave; and/or
unpaid leave.
So how do the different types of leave apply in the wake of the current COVID-19 pandemic?
Whilst the BCEA does provide for certain minimum periods for the different types of leave, these minimum periods may be altered and extended (but not shortened) by way of a written employment contract with your employer.
Accordingly, the first port of call will be to review your employment contract to see if any of the legislative leave periods have been extended.
What are the basic time periods according to the BCEA?
Sick Leave
During the first 6 months of employment, an employee is entitled to 1 day of paid sick leave for every 26 days worked.
An employee is entitled to 30 days of paid sick leave over a 3 year cycle (less the number of sick days taken during the first 6 month period).
This 3 year cycle commences on the first day of an employee’s employment.
The 30 days of sick leave can be taken at any time during the applicable 3 year period.
These time periods may be extended by agreement (e.g. employment contract) in the employers sole and absolute discretion.
These time periods may also be altered by way of an industry specific bargaining agreement.
Over and above the allocated sick leave days, the BCEA further stipulates that you are only obligated to provide your employer with a medical certificate if you have been away from work for more than 3 consecutive days or more than twice in an 8 week period. However, should you be absent for more than 3 consecutive days and/or more than twice in an 8 week cycle, and you are asked to produce a medical certificate (be that from a doctor or a registered traditional healer) and you are unable to, then your employer is under no obligation to pay you for the absent days in question.
Annual Leave
An employee who works a standard 5 day week, is entitled to 15 working days of paid annual leave per year.
An employee’s annual leave cycle commences on the first day of an employee’s employment.
Subject to your employer’s policies, annual leave may have to be taken where an employee has exhausted their given sick leave in any applicable 3 year cycle.
These time periods may be extended by agreement (e.g. employment contract) in the employers sole and absolute discretion.
Family Responsibility Leave
An employee is entitled to 3 days of family responsibility leave per year (which is paid for leave), provided that the employee has been in the employment with the same employer, working at lease 4 days a week for 4 months or longer.
If you do not take your family responsibility leave during the first 12 months of your employment, such leave is forfeited and is not carried over to the next year.
Family responsibility leave can only be taken where (1) the employee’s child is born, (2)
the employee’s child or adopted child is sick and (3) the death of the employee’s spouse or life partner; the death of the employee’s parent, adopted parent, grandchild, grandparent, or brother or sister.
It is important to note that no other incident of illness is covered under family responsibility leave such as the illness of the employees spouse or life partner, the illness of his/her parent, grandparent, brother or sister, cousin, brother-in-law, mother in law, or anybody else is not covered under family responsibility leave. The employee must use annual leave for that purpose.
Your employer is entitled to ask for proof relating to the reason for you taking the family responsibility leave.
Unpaid Leave
The BCEA does not make provision for unpaid leave, however employees by agreement with their employer (in the employers sole and absolute discretion) can take unpaid leave in circumstances where an employee’s sick leave, annual leave and/or family responsibility leave have been exhausted.
