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What the law says about leave days, and how to navigate precautionary measures amid the Covid-19 outbreak, from Adv. Jackie Nagtegaal, Managing Director at LAW FOR ALL.
The age-old saying of "prevention is better than cure" is certainly running through the minds of South Africans at the moment.
People are reconsidering some social habits and lifestyle choices to do their bit in stopping the spread of COVID-19 in South Africa. And with talk of “social distancing” and “self- isolation and -quarantine” as important precautionary measures, households across the nation are likely wondering how to best and sensitively handle asking their domestic worker not to come into work.
Of course, it is important to stay on the right side of the law.
The South African context
It’s estimated that over 1 million domestic workers are employed in private households across the country.
Their tasks, depending on what they have been employed to do, can be anything from cooking, cleaning and gardening to driving, taking care of children and the elderly, sick, frail or disabled.
Of course, no matter what their duties are, domestic workers are considered employees in South Africa.
This means that they are protected by the law, specifically the Basic Conditions of Employment Act and Sectoral Determination 7. The law sets out the minimum conditions of employment are entitled to and ensures fair treatment.
Can a household ask their domestic worker to not come in to work?
Yes, that is up to the household, but they must factor in the livelihood of their domestic worker. If a household decides to self-quarantine, and they think it is for the best interest of the family and the domestic worker, they must consider putting special paid leave in place.
In this instance, the domestic worker hasn’t chosen to stay away from work; therefore, they must still be compensated and the days they stay away from work are not allowed to be deducted from their annual, sick or family responsibility leave days (we unpack this below).
What types of leave are domestic worker entitled to?
As mentioned, because domestic workers are employees, they are legally entitled to paid annual and sick leave.
Annual Leave:
They are entitled to 21-consecutive days paid annual leave per year, or 1-day leave for every 17 days worked, or 1 hour for every 17 hours worked.
Sick Leave:
This is calculated over a three-year period and would be equal to the number of days they would normally work during a 6-week period.
For example, if a domestic worker works 5 days per week, they would be entitled to 30-days’ sick leave over a 3-year period.
Family Responsibility Leave:
If their child or close relative falls ill or passes away, they are entitled to 5 days of paid family responsibility leave.
What if the domestic worker has tested positive for COVID-19?
Legally speaking, to qualify for sick leave, a domestic worker must get a medical professional to issue a medical certificate that confirms the diagnosis and recommends self-isolation.
Similarly, a certificate that states they are healthy and fit to return to work may also be required.
A little perspective
That said, it is important to remember that access to healthcare in South Africa can be considered a luxury.
Domestic workers are in the low-income bracket in our country, and employers need to be sensitive to the fact that domestic workers do not have the same resources as them.
Please be a human being first, and an employer second.
Chat back:
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