The Covid-19 pandemic has created additional complexity for employer considerations during the festive season, particularly at the cusp of what seems to be the dreaded ‘second wave’, says law firm Cliffe Dekker Hofmeyr.

The firm said that many employees have exhausted their annual leave due to Covid-19 related company closures or in instances where their sick leave entitlement was exhausted.

This also raises questions as to whether employees are entitled to take unpaid leave for holiday purposes where their annual leave is exhausted.

Below, Cliffe Dekker Hofmeyr outlines five of the key issues that workers and employers should know about over the December leave period.

Can employees be forced to take their annual leave over December?

An employer is entitled to stipulate that annual leave must be taken to coincide with company closures over the December period.

Where employees have exhausted their annual leave during the course of the year, the December closure or “shut down” period may be treated as unpaid leave.

Can an employer cancel the traditional December leave ‘shut down’ to make up for lost days during the national lockdown?

This is dependant on company policy and any contractual terms to this effect, Cliffe Dekker Hofmeyr said.

“The prospect of doing so is possible but may be subject to agreement. Also, employers should have regard to any agreements put in place earlier in 2020 when the lock down was first implemented in respect of the December “shut down”.

Is an employer obliged to agree to cancel an employee’s annual leave on the basis that their pre-booked holiday has been cancelled due to Covid-19?

“Unless specifically stated in terms of a contract of employment, HR policy or a collective agreement, an employer is not obliged to cancel an employee’s annual leave owing to the cancellation of their pre-booked holiday, whether related to Covid-19 or otherwise,” Cliffe Dekker Hofmeyr said.

Is an employee entitled to unpaid leave for holiday purposes where they have exhausted their annual leave due to COVID-19 and national lockdowns?

There are no provisions contained in the Basic Conditions of Employment Act (BCEA) which entitle an employee to unpaid leave, Cliffe Dekker Hofmeyr said.

Unpaid leave is only referred to in the BCEA with reference to what an employer is entitled to do when an employee’s sick leave or annual leave has been exhausted.

Unpaid leave is generally a measure of last resort and is only to be used in exceptional circumstances.

An employee is not entitled to demand to be placed on unpaid leave during the holiday season, albeit that the employee may have exhausted their annual leave owing to reasons related to Covid-19, said Cliffe Dekker Hofmeyr said.

“However, having regard to the difficulties presented to all employees in 2020, it is advisable that where an employee wishes to take unpaid leave that an employer seriously consider this especially as 2021 is uncertain. A period of rest is important.”

We have over the year discussed the issue of mental health. There were novel approaches to the utilisation of leave designed in 2020, such as a ‘leave banks’ (which were shared by employees by agreement).

“Employers, employees and unions should think out the box to meet operational requirements to ensure that the workforce which returns in 2021 is able to meet the challenges of the continued pandemic and difficult global economy.”

How does an employer manage potential abuse of sick leave over the holiday season?

Employers must ensure that sick leave is closely monitored and where applicable, that employees produce the requisite medical certificates from registered medical practitioners, said Cliffe Dekker Hofmeyr.

“Employers may also wish to send out communication to employees ahead of the holiday season reminding employees that abuse of sick leave is a disciplinary offence and will be dealt with in terms of the employers’ disciplinary code and procedure.

“The production of fraudulent medical certificates is also a criminal offence. There is authority for the prosecution of employees who have relied upon fraudulent medical certificates.”

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