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Can an employee refuse to work while ‘self-isolating’ and demand paid sick leave?

Article written by Eleanor du Plessis (SEESA)

Yes, the employee has the right to refuse to report for work in terms of clause 48 of the Direction issued on 4 June 2020 by the Minister of Employment and Labour, T.W Nxesi. The directive stipulates that “…an employee may refuse to perform any work if circumstances arise which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID-19.” There are reasonable grounds for the employee to self-isolate, even though the doctor’s results are not yet available and the employee and her husband show no symptoms.

The directive furthermore stipulates the following in regards to the right of refusal of employees;

  • No person may advantage or promise to advantage any person for not exercising his/her right (clause 51).
  • No person may threaten to take any action against an employee because that person has exercised/intends to exercise his /her right (clause 53).
  • No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work in line with the above (clause 54).
  • If there is a dispute, the employee may refer the dispute to the Commission for Conciliation, Mediation and Arbitration or an accredited bargaining council for conciliation and arbitration (clause 55).

The employee will not be able to claim paid sick leave. She is not sick and has no symptoms therefore; she will not qualify in terms of the Basic Conditions of Employment Act 75 of 1997.

As an alternative the following:

  • The employee can take annual leave for the duration of this period.
  • They can work remotely from home if this is possible.
  • The employer can implement a system of lay-off.

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