The short answer
You may want the CCMA to get involved.
The whole question
Dear Athalie
I contracted Covid-19 in December 2020 as a frontline worker. Although I have recovered, my condition was critical and I had to go to the hospital. The treatment I received from my employer, the National Health Laboratory Service (NHLS) since then has been very hurtful.
My manager phoned to tell me that my incapacity leave forms that I submitted (11 March 2021) had been lost and were never processed, meaning that I am losing out on my salary.
My hospital stay exhausted my medical aid funds so now I have to pay out of pocket for further medical treatment. I still need to go to the doctor regularly but being on a reduced salary is making this difficult to afford.
I wrote to my employer asking if we can find a way for me to work from home after my recovery. I never received a written response but I did get a vague message from HR to my manager. I am more than willing to go back to work after my recovery but, due to my comorbidities, I cannot do so without risking my life.
I have not even received compensation for being injured in the workplace.
I am out of options. Please help me!
The long answer
There are a number of issues that you raise in your letter and I will try to deal with them one by one.
The incapacity leave forms you submitted on 11 March 2021 that you were told had been lost and so had not been processed:
You can apply for incapacity leave if your sick leave has been exhausted, provided that a medical practitioner has certified that the condition is one of temporary disability and specifically recommends temporary incapacity leave. (Short-term temporary incapacity leave is from 1 to 29 days, while long-term incapacity leave is more than 30 days.) This medical certificate (accompanied by the temporary incapacity application form) must be submitted personally, or by a relative, friend or colleague, to the manager within five days of the first day of absence. An employee must obtain a receipt to prove that the form and medical certificate were handed to the manager. This is important in your case where you have been told that your application forms were lost: you must be able to prove that these forms were submitted to the manager on the date you mention, 11 March 2021, and that they were submitted within the required time period of up to five days after the first day of absence.
The employer must investigate the degree of disability when considering the application and make a decision within thirty days of receiving it. This decision is at the discretion of the employer. If the employer grants the incapacity leave, you should be granted sick leave on full pay for the period of incapacity.
It is certainly unacceptable that you should be denied temporary incapacity leave on the basis that the employer lost your forms. In this regard, you may wish to consult with the CCMA, taking all the proof that you submitted forms and medical certificate timeously.
Compensation Fund benefits:
When you speak of not having received payment for a work-based injury, are you referring to an accident or to contracting Covid-19? If it is an injury, you could check with the employer that the forms were sent in as required. You could also contact the Compensation Fund yourself here:
Compensation Fund
PO Box 955, PRETORIA, 0001.
Compensation House , cnr Hamilton and Soutpansberg Streets, Arcadia, PRETORIA.
012 319 9111. 086 010 5350.
012 357 1750.
If you are referring to contracting Covid-19 at work, you need to be able to prove that you contracted Covid-19 in the course of your duties at work in order to claim benefits from the Compensation Fund. According to Werksmans Attorneys, “… you would have to show that the infection occurred after exposure during the course of your work and from a known source of Covid-19.” You would have to show that the development of symptoms followed the exposure at work.
Very high-risk occupations include performing medical procedures and performing post-mortem procedures – so health care workers and those who work in morgues. High-risk occupations include healthcare delivery and support staff; medium-risk occupations are those which require frequent or close contact within two metres of people who may be infected with Covid-19. Low-risk occupations are those that do not involve frequent close contact of within two metres with the general public.
Where a person suspects they have contracted Covid-19 at work, they must report it to the employer. The employer must report this to the Compensation Fund in terms of the Compensation for Occupational Injuries and Diseases Act of 1993 (COIDA) within 14 days of being informed, and must also lodge a claim for compensation in terms of the directive published in the Government Gazette of 23 July 2020.
The employer must also pay the person’s wages for three months until the Compensation Commissioner has made a decision as to whether compensation will be awarded. The Compensation Fund will reimburse the employer for the three months. If the person is off for longer than three months, the Compensation Fund will take over the monthly payments.
Working from home:
Unfortunately, although you would be classified as a vulnerable employee, as you have comorbidities, it is within the employer’s discretion to decide whether it is possible and desirable for you to work from home.
You should certainly receive a written reply from your employer after writing to them to ask about working from home. Perhaps you should send the letter again, requesting that you receive a clear written reply, as you have only received a vague verbal reply.
If you need advice on your rights as an employee, you could email the CCMA at Info@ccma.org.za
Wishing you the best,
Athalie
Answered on July 21, 2021, 12:02 p.m.
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