EOHCB Answers Questions on Festive Season Work & Hours

Every day, EOHCB assists and advises employers who have questions regarding working hours, leave, legalities and more. Here are some frequently asked questions relating to the festive season and lockdown, that every employer will find helpful.

Q1: Can an employer force an employee to take annual leave during the festive season?

A: An employer is entitled to stipulate that annual leave must be taken to coincide with company closures over the December period. If an employee has exhausted his/her annual leave during the course of the year, the December closure may be treated as unpaid leave.

Q2. Can an employer cancel the traditional December leave period (annual shut down) to make up for lost days during the national lockdown?

A: This is dependent on the company policy relating to an annual shut down and any contractual terms to this effect. The prospect of doing so is possible but may be subject to an agreement between the employer and the employee before implementing such cancelation.

Q3. Is an employer obligated to agree to cancel an employee’s annual leave on the basis that his/her pre-booked holiday has been cancelled due to COVID-19?

A: No, unless specifically stated in terms of a contract of employment, company policy or a collective agreement. Even in the event where a cancelation is not due to COVID-19, the employer is under no obligation to agree to the cancelation of annual leave applied for which has been approved.

Q4. Is an employee entitled to unpaid leave for holiday purposes where he/she has exhausted his/her annual leave due to COVID-19 and the national lockdown?

A: No, as unpaid leave is not an entitlement. Unpaid leave granting rest with the employer and should be considered when an employee’s annual leave or sick leave has been exhausted and is needed to be taken in exceptional circumstances. An employee is not to demand that an employer approved unpaid leave for the festive season.

Q5. How can an employer manage the potential abuse of sick leave over the festive season?

A: An employee must produce the requisite medical certificate from a registered medical practitioner. Employers should send out communication to the entire workforce ahead of the festive season reminding employees that abuse of sick leave is an offense which may result in disciplinary action taken. The production of a fraudulent medical certificate is also a criminal offense.

Q6. Is an employer obligated to require of an employee to self-quarantining or provide a negative test result after returning from a hotspot area over the festive season?

A: No, an employer is not obligated to request of an employee to self-quarantine for 10-days or provide a negative test upon return from a hotspot before being permitted to return to work. Employers must inform employees of the identified hotspots as per the Disaster Management Act regulations. Currently, Nelson Mandela Bay has been identified as a COVID-19 hotspot. Employers are encouraged to monitor updates on the list of hotspots as contained in chapter 7 of the Disaster Management Act Regulations under Alert Level 1.

Q7. What practical measures should an employer implement to mitigate the risk of an COVID-19 outbreak in the workplace during the festive season?

A: · Send communication to all employees ahead of the festive season encouraging them to adhere to all health and safety protocols outside the working environment for the duration of the festive season.

· Remind employees throughout the festive season of the mandatory health and safety measures as required by government.

· Require of all employees who will be visiting hotspots as declared and published in the regulations during the festive season, to disclose such visitations to the employer or the human resources department or the COVID-19 compliance officer ahead of the commencement of annual leave.

· Ensure that all employees returning from annual leave after traveling to a hotspot area, provide either a negative COVID-19 test or observe the mandatory 10-day self-quarantining. Remember that an employee who can work from home during the 10-day period, must work from home and be remunerated for such work performed.

· Encourage all employees who display any symptoms of COVID-19 to remain at home and in serious cases, to submit themselves for testing.

· Maintain strict COVID-19 screening protocols and adhere to contact tracing requirements. The same should apply to members of the public.

If a client is displaying any symptoms or upon screening the client to enter the working environment and symptoms are experienced, rather reschedule the appointment to mitigate any possible exposure in the workplace before the client even enter the establishment.

Best to conduct all screenings outside if possible and remember that visitors are still prohibited and clients should be attended to through a booking system and wait outside the working environment before entering to be serviced. This is to avoid any congestion in a waiting area.

All the personal care sector-specific protocols must be observed at all times. Ensure that all health and safety measures are strictly adhered to, as many employees or members of the public may be asymptomatic.

Q8. Can an employer discipline an employee who fails to adhere to health and safety protocols outside the workplace?

A: If an employer can proof that the conduct of an employee outside the workplace has damaged the employment relationship in some way, an employer is entitled to discipline an employee for his/her conduct outside the workplace. An employer must maintain a hygienic and safe working environment during and post the festive season and respect the privacy of an employee.

Employers should encourage employees to adhere to government protocols outside of the workplace and this should be strongly and continuously reiterated in communication with employees.

Please contact EOHCB direct if you would like to join and receive all the benefits, including advice on every possible workplace scenario.


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