How companies must deal with 'pandemic leave'

The undignified image of two women, both holding high political office, spitting fire at each other like a couple of wet cats has dominated the press over the past week.

Apparently, for some people, that level of behaviour has great amusement value. It has so titillated the population, as has the mindless support by the political parties they represent, that no one seems to have noticed that they have not only devalued themselves and the parties they represent, but also the image of all Trinis chosen by the people to hold political office.

Is so we choose?

That deterioration in our once proud culture stretches deeply into other aspects of life as well. If priest could play mas, as the saying goes…

In the industrial-relations industry, the public-sector-vs-private-sector productivity battle goes on, and is exacerbated by the lack of productivity in large swathes of the public service which has been much remarked upon, even by the President and the Prime Minister.

Once again it comes into focus as public-sector employees’ unions begin negotiations for increased wages and benefits.

One of those benefits involves what has become popularly known as “sick leave.”

There is no such thing, in any literal sense. It is actually, in truth, supposed to be “payment during illness.”

Originally it was granted by law to protect a worker and his (in those days it was mainly a male) family from deprivation while he could not work and earn money to support them.

It was subsequently accompanied by the need for a medical certificate to prove the illness was genuine.

As even the spiralling costs of a visit to a doctor and the certificate became oppressive, this was grudgingly changed to absences of over two days, as most minor viruses disappear by themselves over 48 hours.

Lately, as fear of the epidemic recedes somewhat and housewives no longer wash the bags their groceries come in, the lingering spectacle of people asking for full pay for “pandemic leave” for the second time, or even the third, in the past six months is coming under examination, and three urgent questions have arisen.

The first is, what does a doctor’s certificate entitle an employee to? The second is, what does “extended sick leave” entitle an employee to? And the third has to do with the assumption that if government gives it to public servants, does that mean it is mandated for every other employer as well?

To clarify the confusion, let us start with the myth that a doctor’s certificate entitles someone to paid leave. It does not.

There is a huge difference between the definition of the words “entitled” and the word “eligible.”

A doctor does not pay the employee's wages. The employer does. All a doctor’s “certificate” can do is to recommend a certain number of days leave from work be granted in order that the employee can recover from a specified medical condition.

Like the devaluation of politicians mentioned above, there are doctors who write out “certificates” without even looking at the “patient”…so many days recommended in return for $X per day. They have devalued the authority of medical certificates.

There is a law, the Minimum Wages Act, which stipulates that all employees who are genuinely ill must be granted up to a total of 14 working days' paid sick leave in any one year. This applies to both public and private sectors.

So if an employee goes for a covid test, the law stipulates he or she must stay away from work until the test result comes in. If that takes ten days or two weeks before the results come in, which is true of most government testing sites, that time may also come out of the 14 days' paid “sick leave” allocation.

Then, if the worker tests positive, the law says they must stay away from work for at least another ten days and/or until they test negative.

No law was passed requiring that covid leave be given as paid sick leave, only that it be granted as leave, so only what is left out of the original 14 working days must be paid for.

The case is different if the worker is a public servant in which case, of course, everything is paid by the state and no time limitations apply.

In respect to the second question, in the private sector, the employee can apply for “extended sick leave” if their contract of employment includes that provision, or if it is included in a collective agreement signed between company and a representative trade union. Or if the employer can afford it and is willing to grant it.

Even then, there is no guarantee that paid “extended sick leave” will be given.

Even for covid. Employees may be eligible to apply for extended sick leave, and for employees with a clean record it is usually granted if the medical certificate recommends it, but that does not mean the employee is” entitled” to it. The grant of such leave is still in the purview of the employer. The employer, in the case of SMEs (small and medium-sized employers who cannot even afford to pay rent) may not be able to afford it. If the application comes from a worker with a bad disciplinary record, the employer may consider giving the person unpaid leave, but even that is not guaranteed.

As for the third question: that it is granted to public-sector employees, even those with poor employment records, does not mean that in the private sector, companies must follow suit. Government employees are paid from an apparently inexhaustible source of funds (the taxpayer), while many SMEs have closed down because of enforced lockdowns when they could not earn anything with which to pay workers’ wages.

When this happens, not even severance pay is demanded by the law, since, as one lawyer said: “You cannot get blood out of a stone.”

All things are not created equal.