Can your employer deny you holiday leave if you used up your sick leave due to Covid-19?

By Supplied Time of article published Dec 1, 2021

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By Gillian Lumb and Amy King

Employers have dedicated much of the year to implementing adequate health and safety measures in the workplace, including placing employees on paid sick leave at the onset of Covid-19 symptoms or following exposure to the virus. Employers may be wondering when “enough is enough” and how this impacts on requests for leave this holiday season.

Sick leave has been taken at unprecedented rates in the past year. This raises a number of pertinent questions, including:

  • What is your employer to do if you have exhausted all your paid sick leave entitlement due to Covid-19 infection or exposure and nevertheless request leave over the holiday period?
  • Is the position different where you contracted or were exposed to Covid-19 at the workplace?

In terms of the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, dated June 11, employees excluded from the workplace due to Covid-19 symptoms or exposure will use their paid sick leave entitlements under the Basic Conditions of Employment Act (BCEA) during the period(s) of absence. When sick leave under the BCEA has been exhausted, you can apply for illness benefits in terms of the Unemployment Insurance Act.

Missing work due to Covid-19 exposure, the effects of long Covid, or any other health ailment may result your extended absence from work. Your employer may be tempted to refuse your annual leave request if you have been absent from work due to ill health and have exhausted their sick leave entitlement under the BCEA. However, it is not reasonable or fair to select which employees may or may not enjoy their annual leave entitlements on the basis of health or on the basis that they have exhausted their sick leave entitlements, as the entitlement to annual leave is distinct from the entitlement to sick leave. In addition, and in terms of the BCEA, you are afforded a minimum number of days annual leave a year in recognition of the importance of them having leisure time away from work.

Notwithstanding the importance of annual leave, it remains reasonable and lawful for an employer to refuse an employee’s leave application based on its operational needs, such as where the timing of the leave will have a detrimental effect on the business, or if the business is short-staffed at the time.

Case law

It has long been established that employees do not have a right to take annual leave based solely on when it suits them. The court in Ludick v Rural Maintenance (2014) reiterated that the BCEA contemplates employees enjoying their annual leave at a time mutually agreed between the employer and employee.

Based on its operational needs, your employer may potentially block out periods of the year that are particularly busy, during which time you will not be permitted to take annual leave. This is permissible under the BCEA, which provides that an employer may determine the time at which leave may be taken, where no agreement is reached.

Your employer may, in appropriate circumstances, refuse your request for annual leave, provided that you are not being singled out for different treatment because you may have taken all your sick leave entitlement and, in addition, you are not prevented from using your annual leave entitlement in the annual leave cycle or the six months following the completion of the cycle.

There is no distinction between employees who contracted Covid-19 at work or any other employees when considering the grounds to grant or refuse annual leave.

Gillian Lumb and Amy King are employment law experts at Cliffe Dekker Hofmeyr.

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