Of Leave Days, Expressly Sick Leave

Shameela Winston | Monday August 31, 2020 13:41

You know that we currently have a paid leave ceiling of 20 days a year, so I was just wondering as I often do about the statutory provisions, whether it was time to reflect on the Employment Act and see whether we could adjust certain provisions to bring them into alignment with prevailing employment practices.

Well, with this pandemic, it struck me again as it often does, that 20 days of sick leave are not necessarily enough.

Of course, if I just have a mild condition that can be treated and resolved overnight, 20 days is reasonable. But what if I have something more serious? Like, what if I’m in hospital with COVID-19? 20 days won’t cover my recovery period.

Before COVID-19 I used to think about the inadequacy of the 20-day provision in cases of serious illness and injury that would have a colleague hospitalised over 60 day periods. Of course some employers have a policy in place to cater for such scenarios, but what about cases where the employer relies on the Act? What happens after 20 days?

Should I keep my substantive employee on the payroll, or should I ‘suspend’ employment (without calling it that) and just say it’s unpaid leave? And what do I say to the replacement employee who comes in to plug the gap? It’s temporary? For how long? Because if I say temporary for 12 months, and then the substantive recovers within three months, I’d be stuck with a temporary resource who I have no grounds to terminate before 12 months elapse. How would the extension of sick leave absorb these concerns?

Yes, that is a good question. I don’t know definitively how extending sick leave beyond 20 days would necessarily look like, but, in my reverie, the statutory provisions could allow for various delays and complications in recovery, saying for instance that in the first 20 days, it’s paid sick leave, and for a certain period after that it is on 50% pay, and if the illness extends beyond that, sick leave is unpaid.

There would also be a cap placed on these extensions, so that for instance we say that if the employee is still unable to return to work at the end of 75 days (inclusive of the first 20), then employment may be terminated.

As indicated, there are some employers who apply world class standards, whose sick leave provision is relaxed enough to even allow for remote work or ‘work-from-home’ for someone who is in recovery. Those employers have designed their reward structures to accommodate any adjustments made to work as described above. But there are also many more employers who rely exclusively on the Act, which ends up not being competitive practice for their employees.

But coming round to the COVID-19 related changes to the employment landscape, I wonder whether the lines will blur when it comes to sick leave anyway. Because. Suppose I am working from home as part of the workplace decongestion policy, and then I fall sick and the doctor prescribes three days sick leave.

Since I’m already at home anyway, does the sick leave given mean I become inaccessible through the various digital platforms used for remote work for those three days? Which means I apply for the sick leave electronically and then switch off my phone and email for that time?

The answer is very obvious to some employers, very obvious, practical and well within policy parameters for them, because they have been that evolved anyway. But that is not everyone. This is why I was thinking that maybe if the sick leave provision is reviewed to reflect prevailing employment practices, it would help to bring all employers to the same level of understanding about wellness. It would remove the fear that employees would abuse the extra days if they are mandated (I mean we can talk about abuse even with just these 20 days in current use), and it would demonstrate to the employee that they matter, not just as a cog in the wheel, or talent on the map, but as a person.

And that kind of recognition tends to cultivate a level of maturity and commitment from both the affected individual and the colleagues who can draw comfort in knowing that their employer actually does care.

As I said, this was just a bout of thinking aloud. Maybe there are others whose practice is far more creative and enabling than I could imagine. To the extent that we can deal with the question of sick leave without asking for a statutory review. Just saying. But in the meantime, have a good week.