South Africa’s move to Alert Level 1 came to the aid of most employees who were compelled to stay at home due to the lockdown regulations promulgated to reduce the spread of Covid-19.  However, despite the easing of the lockdown restrictions,  there are employees who may still be unable to return to work due to their higher risk of complications or death should they contract Covid-19. The nature of the work performed by these employees may further prevent or limit them from working remotely. 

In instances where an employee is unable to return to work due to an existing medical condition and their high risk of exposure to Covid-19 in the workplace cannot be limited, the employer may place such an employee on annual leave. From the inception of lockdown, the Department of Employment and Labour encouraged employers to allow and/or enable their employees to work from home and to continue paying their employees without placing them on annual leave, subject to the condition that the employer is able to do so. 

An employer who offers his/her employees the minimum annual leave days as prescribed in the Basic Condition of Employment Act (“BCEA”) may not require or permit such employees to tender their services to the employer during days on which they are on annual leave. An employee may therefore be placed on annual leave under circumstances where they are unable to return to work and are further unable to work from home due to the nature of the work performed by that employee. Employees who are able to work remotely must not be treated less favourably than those who are able to return to the workplace and must be considered as if they are tendering their services physically in the premises of the employer. 

Employers may also consider placing employees who are unable to return to work on special leave if their annual leave days have been exhausted. However, the period of special leave cannot be limitless and employees must be aware of the fact that this may, in future and subject to the period of their absence from the workplace, result in retrenchments and/or dismissal due to incapacity. 

It is important to note that the BCEA currently makes no provision for the handling of annual leave during a national state of disaster or periods of extensive lockdowns which prevent employees from reporting for work. Therefore, employers are advised to implement changes and/or decisions taking into consideration our existing employment law legislation and through consultations with their employees.