On Sunday, 15 March 2020, President Ramaphosa announced a state of disaster which enables the South African Government to introduce far-reaching measures to deal with COVID-19.
At the time of the announcement, there were 61 individuals who had tested positive for COVID-19 in the country.
One of the measures introduced by President Ramaphosa is the closure of all public schools from Wednesday, 18 March until 14 April. According to the school calendar, the first school term of 2020 was due to end on 20 March, and schools were to re-open on 31 March.
Private schools, which were only scheduled to close on 9 April, are following suit, with many already closed and others closing during the course of this week, and reopening on 14 April (4 term schools) or 5 May (3 term schools). Most school sport and cultural events scheduled for this week have been cancelled.
This early holiday can wreak havoc with childcare arrangements and many working parents are having to make urgent plans in order to ensure that their children are looked after.
How should employers treat the absence of working parents who are off work in order to look after their children whose schools are closed?
Many are asking whether this can be regarded as family responsibility leave for purposes of the Basic Conditions of Employment Act? The short answer is no. Under the Basic Conditions of Employment Act, family responsibility leave only applies if the employee is required to look after a sick child, or if the employee requires time off in the event of the death of a close family member.
An employee who needs time off to care for children who are on holiday, may accordingly need to take annual leave. This is of course subject to the employee having annual leave available. If not, the employee may need to take unpaid leave, unless the employer allows some form of special leave in its discretion and subject to such conditions as it may impose.
Many employers have leave policies in place requiring applications for annual leave to be made reasonably in advance. Given the short notice of the school closures, employers may need to be flexible in applying their policies and allow applications for leave even if these are not strictly in accordance with the time frames set out in the policy.
Both paid annual leave and unpaid leave are subject to the operational requirements of the employer. The employer may accordingly refuse an application for annual or unpaid leave for business-critical reasons and if so, should inform the employee accordingly, preferably in writing.
Should the employee nevertheless be absent, such absence would constitute an act of misconduct in the form of a refusal to obey a reasonable instruction and appropriate disciplinary action may need to be taken.
If the employee is able to work remotely, the employee may not need to take leave, and s/ he would continue to be subject to her/ his normal deliverables and would continue to be paid.
Working remotely while looking after children who are on holiday, may however, prove to be quite a challenge, and it will be important to set rules and conditions for remote working in these circumstances. These rules may include clear performance objectives for the employee and an acknowledgement that the employer may revoke the remote working arrangement if these objectives are not met, or if the employer’s operational requirements demand a change in the working arrangement.
The employer does not have an obligation to pay for, or to make a contribution towards, its employees’ childcare arrangements, even in circumstances where the scheduled school holidays have changed. Any payments or contributions in this regard would be made in the sole discretion of the employer and subject to such conditions as it may wish to impose. The income tax implications of such allowances will also need to be carefully considered.
