Many employers were advised to simply utilize paid leave entitlements during the initial period of the lockdown in lieu of unpaid leave.

In many cases, this advice has proven to be extremely shortsighted for a variety of reasons including that paid annual leave entitlements were not sufficient to cover the period of the National Lockdown, many employers require staff to take annual leave at specific times such as in December (and this remains the case) and the COVID-TERS benefit constituted a better option than utilizing paid annual leave entitlements.

The amended COVID-TERS Regulations provided that employers could apply for COVID-TERS benefits if they had forced employees to utilize their paid annual leave entitlements during the period of the lockdown.

Employers could therefore apply for COVID-TERS benefits for the period of paid annual leave taken and set off the benefits paid by UIF (i.e. keep the payments without distributing them to the employee) provided that the employee was credited with a proportionate amount of annual leave. These applications are however no longer available.

The question of whether mandatory use of annual leave was appropriate is a vexed one. On the one hand, it served to ensure that domestic workers were paid in circumstances where they were legally prohibited from working and therefore were not entitled to be remunerated. On the other hand, it is debatable whether being compelled to stay at home during a lock-down constitutes ‘leave’ as required in terms of the BCEA.

In my view, any challenge to the forced use of annual leave for the period of hard lockdown will likely survive scrutiny in circumstances where the domestic worker obtained a benefit in the form of pay which he/she may not have otherwise received. Employers who failed to apply for COVID-TERS during the relevant period may however be at some degree of risk.