Essential Services, Leave & Sick Leave & Temporary Lay-Off

Latest Information - Essential Services, Leave & Sick Leave and Temporary Lay-Off (TERS Benefit)   

Information is based on the following legislation:

The Constitution of South Africa and the Bill of Rights

The Occupational Health & Safety Act 85 of 1993   

The Basic Conditions of Employment Act 75 of 1997

Unemployment Insurance Act 2001 Act 63 of 2001

Essential Services

If your business is in this category, it is essential that you have the necessary protocols in place. Constant risk assessments are critical. You should also issue your employees with letters to allow them to travel for work, should they be stopped by the forces. It is very important to keep in mind that according to the Occupational Health & Safety Act 85 of 1993 employees have the right to a safe working environment. Should you have an employee that refuses to come to work because of the fear of the virus, it is important to assess why the employee would not want to come to work. Should you have all the protocols in place and after assuring and explaining the protocols to the employee, the employee needs to understand that he/she might face disciplinary action. Should you have any questions about essential services, please feel free to contact me.          

Leave

There seems to be a lot of confusion about annual leave. As per my previous email, it is still a matter of consultation. Employees can request that their leave days be utilised for this period, but it cannot be enforced by the employer. It is however not cast in stone and a solution can be worked out with consultation with your employees. Depending on the circumstances of your business, through consultation, employees can have access to unaccrued leave or authorised unpaid leave. The Minister of Employment and Labour, Thulas Nxesi, does not encourage employers to utilise their employees’ leave during this period, but employers are within their rights to consult with their employees about it. Please feel free to contact me should you have any questions with regards to annual leave and COVID-19.      

Temporary Lay-Off (TERS Benefit)

This is the part that I am sure most of you want to know more about. 

Please note that in the event of a temporary lay-off notice pay is not applicable. 

This directive shall commence immediately from the date of publication by the Minister of Employment and Labour, which was 26 March 2020. This directive remains in operation for a period of 3 (three) months or until they are withdrawn by the Minister, whichever comes first.

The idea behind using the TERS benefit fund is because the Government would rather pay the money for salaries to the employer as this will help to process the applications faster.  As you can imagine millions of employees will apply for UIF benefit, so it just makes sense to pay it to the employer.  It is also easier to verify the banking details for the employers. 

• Should an employer as a direct result of COVID-19 pandemic close its operations for a 3 (three) months or lesser period and suffer financial distress, the company shall qualify for a COVID-19 Temporary Relief Benefit.
• The salary benefits will be capped to a maximum amount of R17 712, 00 per month, per employee and an employee will be paid in terms of the income replacement rate sliding scale (38% - 60%) as provided in the UI Act.
• The benefits will only pay for the cost of salary for the employees during the temporary closure of the business operations.
• Employees that are paid by the employer, cannot qualify for this benefit.

Application Process (You will receive an automated reply with the attached documents)  

The employers shall apply by reporting their closure to covid19ters@labour.gov.za and there shall be an automatic response outlining the application process.

The employer shall be required to furnish the Unemployment Insurance Fund with the following completed documents:

• Letter of authority from the company.
• Signed Memorandum of Agreement (MOA) from the employer or Bargaining Council with the UIF.

In order for your application to be successful you will have to:

1. Show financial distress, e.g. a call center that cannot operate as per normal because of the lockdown, or orders not coming in, etc.
2. Your company must be registered with UIF.
3. You must comply with the application procedure.

The TERS benefit will only be used to help businesses to pay for the cost of salaries.    

If your business can afford it, you can offer your employees interest-free loans or advances.

Should you be in a position where your new employee started today, this is also the route you will follow. You can offer that employee leave in advance that the employee will have to pay back to you - pro-rata, should they want to take leave later.

This is however also something that you will have to consult about.   

Sick Leave

In the event where one of your employees gets the virus, you will claim from the UIF benefit.   

The following documents are required when applying for this benefit:

• UI19 and UI2.7 (completed by Employer)
• UI2.2 (a portion of which is completed by the Doctor)
• UI2.8 (bank form completed by the bank)
• Employer Declaration
• Employee Declaration
• Copy of employee’s ID document

In the event where more than 50 employees are being retrenched, the Department has established Rapid Response Teams to assist companies to process the applications. The teams will be deployed to the employer’s premises in each province and employers are requested to contact their local labour offices to arrange appointments.

Please feel free to join my WhatsApp group for updates and information here.

Should you have any questions, please don’t hesitate to contact me. More important, make sure you have constant communication with your employees during this time. Make sure you have a current COVID-19 protocol and one for after the lockdown.

Together we can flatten the curve.

Best wishes