COVID 19 – NON-ESSENTIAL EMPLOYEE NOT ABLE TO WORK REMOTELY: SICK LEAVE? UNPAID LEAVE? ANNUAL LEAVE?
Covid-19 has effectively divided our workforce into essential and non-essential employees. While essential employees continued with their employment, albeit under very different circumstances that came with their challenges, non-essential employees were left with many questions in the event of them not being able to work remotely.
We have focused the below article on non-essential employees that we’re unable to work remotely. The below questions are some examples of what has been raised by my respective clients in the last few weeks:
- Can the company apply the “no work, no pay” principle?
- Can the company force me to take unpaid leave?
- Will I still get paid my salary?
- Can I take the national lockdown period as annual leave so that I can get paid my salary?
- Does the national lockdown period qualify as sick leave?
Covid-19 has left us all in very unchartered territory, as a national lockdown on this scale has not occurred in the past. Many legal practitioners take each matter as they come and assess them based on their own set of facts and circumstances. This is because each company will need to be judged on their own respective economic situation rather than putting all companies in the same boat.
The principle of no work no pay is simply that – if you do not attend work and render your services to the company, the company is not liable to pay you a salary. As with Covid-19, this can be through no fault of the employee or the company. These cases resulted in staff being placed on “unpaid leave” as they were excused from attending work, and were accordingly not remunerated.
While the government was proactive in implementing a type of UIF benefit called Covid-19 TERS, it did not fully compensate employees as it only paid a portion of their salaries, which was capped at around R 7, 500.00 in April and around R 6, 500.00 in May. Unfortunately, we have seen that most companies relied on this benefit entirely as they were unable to pay salaries with having no income for close to a month and a bit.
But, as stated above, not all companies are in the same boat. Some companies, despite not being able to trade physically, still managed to earn an income. Thus, although their staff was not providing services to the company, these companies were still able to pay either a full salary or a portion of the staff’s salary. The company was within its right to deduct the days of the national lockdown as annual leave in circumstances where the company paid its staff their full salary. In these instances, where the company paid a portion of the staff’s salaries, the company would need to calculate the portion of unpaid leave to be applied in proportion to what was paid.
The National Lockdown period cannot be seen as appropriate to apply for sick leave unless the employee attained a sick note and could prove to the company that they were indeed sick. While they have no obligation to provide medical reasons, they need to supply a medical certificate confirming they were unfit to work due to a medical condition.
Whether a non-essential employee can still accrue annual leave during this time will depend on how their agreement is worded. It is therefore recommended that employees and employers seek legal advice before taking any actions that would essentially alter the employee’s terms and conditions in their employment contract.
Legal Disclaimer: PLEASE NOTE THAT WE STRONGLY RECOMMEND THAT YOU CONTACT US DIRECTLY FOR A CONSULTATION FOR SPECIFIC ASSISTANCE AND ADVICE REGARDING YOUR SPECIFIC MATTER AS THE INFORMATION CONTAINED IN THIS ARTICLE IS INTENDED AS A GENERAL GUIDELINE AS TO LABOUR LAW IN GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE.