Frequently asked questions about leave

sickleave.jpgSmall business owners are obligated to comply with labour legislation when it comes to employees' taking a leave of absence. The questions and answers below should clarify what the rules are with regards to the various types of leave.


Q: I only employ part-time workers. Are they entitled to annual leave?
A: Yes. Labour law states that employees who work for 24 hours or more a month for the same employer may take annual leave. You and your employee should agree about when the leave is to be taken. If there is no agreement, then you may decide. 

Employees have a right to unpaid leave and must apply in writing. Annual leave may not be taken during a sick leave period or notice period. An employee may not work during leave or be paid instead of leave, except when terminating his employment.

Q: Do I have to pay my employees in full if they take annual leave?
A: Yes, the employee must be paid in full before the leave starts or on the normal payday, if agreed. If an employee leaves the job he/she must be paid for any leave accrued, but not taken.

Q: How many days annual leave does an employee get?
A: An employee must have at least 21 leave days a year, starting from the date of employment, or one day's leave for every 17 days worked, or one hour for every 17 hours worked. Public holidays are not counted as leave. 

Q: What if the employee still has leave days left over at the end of the year?
A: If an employee has any leave days left, he/she may take that leave within six months of the next year of employment with the same employer. 

Q: An employee has resigned and has 25 days leave due to him. He wants to take this leave during his notice period, but I'd rather just pay out his leave.

A) Section 20 (5) (b) of the Basic Conditions of Employment Act states that, "the employer may not require or permit an employee to take annual leave during any period of notice of termination of employment.” This means that your employee is actually not allowed to take leave during his notice period and you are within your rights to refure this. 


Q: How much sick leave is an employee entitled to?
A: Sick leave works in a three-year cycle. An employee may take one day's sick leave for every 26 days worked during the first six months of employment. Thereafter, an employee may take the number of days he/she normally works in six weeks during every three year cycle. 

Q: If a staff member calls in sick, do they have to produce a doctor's letter?
A: You can ask the employee to produce a valid medical certificate - issued and signed by a medical practitioner - if he/she has been absent from work for more than two days in a row or more than twice in eight weeks. If the employee does not have a valid medical certificate, you do not have to pay the employee. 


Q: How much maternity leave is an employee entitled to?
A: An employee may take at least four months unpaid maternity leave. This leave can start at any time from four weeks before the expected date of birth or when a doctor or midwife certifies that leave is necessary for the health of the mother or child. An employee must notify the employer in writing (if she can write), of the date on which she wants to start maternity leave. 

Q: What if my employee wants to come back to work soon after the birth of the child?
A: An employee may not work for six weeks after delivery, unless a doctor or midwife certifies that she is fit to do so. 

Q: My employee has had a miscarriage. Does this count as sick leave or maternity leave?
A: An employee who has a miscarriage during the last three months of pregnancy or who bears a stillborn child, is also entitled to six weeks maternity leave, whether or not the employee has started maternity leave at the time.    

Q: I have a female engineer working for me. Can she continue to work while she is pregnant?
A: You may not force or allow a pregnant or breastfeeding employee to perform work that is hazardous to her health or the health of her child. You will have to arrange alternative duties for the duration of her pregnancy.

Q: I can not afford to pay maternity leave, so what is my employee supposed to do?
A: Female employees may apply for UIF from the Department of Labour in cases of unpaid maternity leave. You can visit the Department of Labour's website to find out more about claiming maternity leave benefits from the UIF.


Q: Am I obligated to pay an employee who takes leave to go to a funeral?
A: If the employee has worked for you for longer than four months and works for at least four days a week, he or she may take three days paid family responsibility leave during each year of employment. 

Family responsibility leave applies:

  • When the employee's child is born
  • When the employee's child is sick
  • In the event of the death of the employee's spouse, life partner, parent, adoptive parent, grandparent, sibling, child, adopted child

Q: Can I ask my employee to prove why he needs the leave?
A: You may ask for reasonable proof of an event when this type of leave is required, such as a death certificate or doctor's letter.

Source: The CCMA Website

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