Does Annual leave accrual during COVID-19?
In these uncertain times that we are currently operating in, COVID-19 had employers and employees raising a lot of questions concerning the future, especially regarding the accumulation of leave during the COVID-19 lockdown periods. The main questions regarding annual leave are:
- “Will the annual leave of employees, who are not working, accumulate?”
- “If a business is not operating, as a result of the lockdown, will the annual leave of the employees accumulate?”
In instances where employees are not able to work, due to COVID-19, the Department of Labour (UIF) requested the employers not to utilise the leave days of the employees but rather to claim from the available funding such as TERS.
All employees in South Africa, irrespective of their position or remuneration, are entitled to annual leave with full remuneration, which is regulated in terms of Section 20 of the Basic Conditions of Employment Act (BCEA).
Employees are entitled to 21 consecutive days’ annual leave in a 12-month cycle if they have worked more than 24 hours in a month at the same employer.
Paid leave days during the 21 consecutive leave days, as stated above, will then be as follows:
- 18 days if the employee works 6 days a week
- 15 days if the employee works 5 days a week
If the employment contract stipulates that the employee will receive a certain number of leave days per year, leave then accumulates, irrespectively whether employees had worked or not. The same principle will apply whether a company had been in operation or not.
Further to the contract of employment does Section 20(2)(b) of the Basic Conditions of Employment Act state that:
(2) An employer must grant an employee at least—
(b) by agreement, one day of annual leave on full remuneration for every 17 days
on which the employee worked or was entitled to be paid;
From the above Section, it is clear that annual leave will accumulate for all periods that employees were entitled to be paid. During the lockdown periods, all employees were entitled to payments through the various funding’s made available, but more specifically the COVID 19 UIF TERS Funding.
This lockdown period should not be seen as an opportunity for employers to penalise employees on the accumulation of leave. Accumulation will still occur where leave days have been set out in the employment contract and as per the Basic Conditions of Employment Act.
The simple answer to the above-mentioned questions is, therefore, the following:
Annual leave will accrue during the lockdown periods, even if the employee is not working and the business is not operating.
Resources
Basic Conditions of Employment Act 1997 (Section 20 and 21)
About the Author
Alicia Oberholzer obtained her LLB Degree in 2016 at the University of the Free State. She was admitted as an attorney in the Free State High Court in 2018. She also started her career at SEESA in 2018 as a Legal Advisor, assisting clients with Labour and BEE related matters.