Sick Leave – What you need know
Sick leave costs South African companies billions of rands every year. And having just one or two of your employees constantly absent from work will see you adding thousands to this kitty.
The Basic Conditions of Employment Act (BCEA) makes provision for paid sick leave and for paid leave to attend to limited family responsibilities. It is a sad reality that whilst most employees only take sick leave when they are actually ill or use the time to receive treatment for chronic conditions, there are others who may be abusing their leave entitlements and, in so doing, are costing your business money, lost productivity and reduced staff morale.
There are many laws pertaining to sick leave but not everyone is aware of them or how it works exactly.
Bargaining Council Agreements may allow for changes to the Basic Conditions of Employment Act in certain Industries.
Sick leave and medical certificates – The basics
What the Basic Conditions of Employment Act says:
http://www.polity.org.za/article/sick-leave-and-medical-certificates-the-basics-2012-11-19
22. Sick leave
(1) In this Chapter, “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following—
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.
(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).
23. Proof of incapacity
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.
What does it really mean?
From the moment an employee commences his employment, the sick leave cycle starts.
This section does not apply to employees who work less than 24 hours per month for an employer. These employees will have to negotiate sick leave with their employers.
An employee who works 5 days per week is entitled to 30 days every 36 months. An employee who works 6 days per week is entitled to 36 days sick leave every 36 months. Where an employee works Monday to Friday, plus every second Saturday, the employee is entitled to 33 (30 + 3 Saturdays) days sick leave.
During the first six months of employment, an employee (this also applies to an employee employed on a fixed term basis for a period of 6 months or less) is entitled to 1 day’s paid sick leave for every 26 days worked. If the employee needs extra sick leave, it will be in the form of unpaid leave.
And what about employees employed on a fixed term basis for a period of say, 8 months? There is nothing in the Act that suggests that these employees are not entitled to all the sick leave afforded to them by the Basic Conditions of Employment Act. It may happen that an employee who works 5 days per week may be absent for reasons of illness for a period of 30 days. And the employer has to accept that – on condition that the employee is booked off by a medical practitioner.
An agreement in terms of which an employee agrees to take not more than 10 (or any number of days less than the number of days to which an employee is entitled) days sick leave per year is invalid. On the first day of the seventh month, an employee is entitled to ALL his/her sick leave.
Only an employee who is too sick to work, may claim paid sick leave. If the employer is in a position to prove that the employee was not sick, disciplinary steps may be taken against the employee.
If the employee is sick for one or two days, the employer has to grant paid sick leave, even if the employee is not booked off by a medical practitioner.
If the employee is absent for “more than two consecutive days” without a medical certificate, the employer does not have to pay the employee. This means that an employee needs to produce a medical certificate on the third day in order to receive his/her pay for the three days.
May an employer require a medical certificate when the employee is absent on a Friday or a Monday, or the day before or after a Public Holiday? No! The Basic Conditions of Employment allows an employee to be “absent from work for more than two consecutive days or on more than two occasions during an eight-week period” without a medical certificate. An employee who does not work on Saturdays and Sundays, is NOT absent from work for more than two consecutive days. The employee is absent only on the Friday and the Monday (two consecutive work days) – and will only have to produce a medical certificate if he/she is also absent on the Tuesday. The second part of subsection (1) may also be used to justify this viewpoint. The employee’s absence on the Friday could be seen as the first occasion, his/her absence on Monday as the second occasion – which means that the employee has not been absent from work for… more than two occasions during an eight-week period.
What is a medical certificate?
It is a document issued and signed by someone who is certified to diagnose and treat patients and who is registered with a professional council. This may include dentists, psychologists, interns and nurses. Some sangomas or traditional healers do belong to a professional association, but as this is a voluntary association they are excluded as persons who may issue a medical certificate. (This may have changed now)
What is the “status” of a medical certificate?
A medical certificate constitutes indirect evidence of an employee’s illness. Where a medical certificate states no more than that the employee was examined by the doctor, and that the doctor “was informed” that the employee was unfit for work, the medical certificate cannot be accept as proof that the employee was in fact ill.
There are still many myths surrounding the issue of sick leave. Check out these facts below on this thorny workplace issue:
Sick Leave myths busted
Myth – A sick note from a traditional healer is not a valid sick certificate.
Fact – A sick certificate from a traditional healer is valid as long as the practitioner is registered. The law says that a medical certificate must be issued and signed by a medical practitioner – that is a person who is certified to diagnose and treat patients – who is registered with a professional council that is established by an act of parliament.
Myth – I need to present a sick certificate if I was off for two consecutive days.
Fact – An employer can only request a medical certificate if an employee has been absent from work for more than two consecutive days – in other words, from the third day onwards. An employer can also request a sick note if an employee takes a day sick leave more than twice in eight weeks. If the employee does not produce a valid medical certificate in these circumstances, the employer does not have to pay the employee for the day he/she did not work.
If an employer has experienced a lot of problems with sick leave, he or she may include a clause in the terms of employment that requires an employee to produce a sick certificate under certain circumstances, for example when taking sick leave on a Monday or Friday.
Myth – Employers have no right to question a sick certificate.
Fact – The fact is that an employer has every right to question a sick certificate, especially if there are grounds to believe that the employee might not have been sick – as was the case of the employee whose picture appeared in the newspaper for winning a golf tournament on the same day he was supposedly sick with flu. However, an employer cannot refuse the sick certificate on a hunch, and would have to provide evidence – either proof that the sick note is invalid, or an eye witness that saw the “sick” employee dancing at a nightclub the night before.
Myth – Sick leave works on an annual cycle.
Fact – Sick leave works in a three-year cycle. During the first six months of employment, an employee may take one day’s sick leave for every 26 days worked. Thereafter, an employee may take the number of days he/she normally works in six weeks during every three year cycle.
During the first six months of employment, an employee is entitled to take one day sick leave for every 26 days worked.
Myth – I have to put in normal leave when I stay at home to look after a sick child.
Fact – If the employee has worked for an employer for longer than four months, and works 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.
An employer may ask for reasonable proof of an event when this type of leave is taken, such as a death certificate or doctor’s letter for a sick child.
Myth – I can access my sick leave if I fall ill while on normal leave.
Fact – The law does not have any specific regulation around this and it may differ from company to company. However, labour law consultant, Michael Bagraims, believes that an employee is not entitled to “trade” their normal leave for sick leave should they become sick while on holiday.
Myth – I have to put in normal leave everytime I go to the clinic to get my medication.
Fact – According to labour lawyer, Michael Bagraims, a person can access sick leave when they need to do something in line with an illness. – (Health24, updated January 2014)
Sick and Tired of Employees being Sick and Tired?
What to do?
The Basic Conditions of Employment Act (BCEA) makes provision for paid sick leave and for paid leave to attend to limited family responsibilities. It is a sad reality that whilst most employees only take sick leave when they are actually ill or use the time to receive treatment for chronic conditions, there are others who may be abusing their leave entitlements and, in so doing, are costing your business money, lost productivity and reduced staff morale.
Here’s how to ensure that you protect your business and your employees from the costs of excessive absenteeism and abuse of sick leave:
1: Be clear on rules and standards relating to attendance, absenteeism and leave
Although the BCEA contains all relevant stipulations about annual leave, sick leave, maternity leave and family responsibility leave, employees do not always understand exactly how these provisions apply to them, or exactly what is expected from them relating to attendance, absenteeism and leave.
Your employees need to know:
- How and when to apply for any form of leave;
- Who to contact if they are ill, injured or have a family emergency;
- How to contact that person (telephone, text message, e-mail etc);
- When they will be required to submit supporting documents such as a note from a registered medical practitioner or proof of a death in the family; and
- What the consequences of non-compliance with these workplace rules, will be (disciplinary action, unpaid leave etc).
2: Monitor work attendance and leave
Regardless of what type of payroll system or time and attendance system you are using in your business, you need to find a means of monitoring the work attendance and leave patterns of every single employee, on at least a monthly basis. Specifically ensure that there are no patterns of absenteeism emerging amongst your employees, like someone routinely taking 2 or 3 days a month off due to illness, or always being off work for a few days after pay-day. Patterns and trends like this are usually indicative of a more serious problem, such as a chronic medical condition or even addiction to alcohol, drugs or gambling.
You cannot address a problem, if you are not aware of the fact that it is occurring in the first place.
3: Talk about the absence
In order to reduce discrimination and potential victimisation, doctor’s notes don’t necessarily have to state exactly what is wrong with an employee. This does not preclude you as the employer though, from initiating a discussion with the employee to find out whether they perhaps have been diagnosed with a chronic condition that may require on-going treatment and care (and hence on-going absences) or if there are perhaps personal problems which may impact on their ability to attend the workplace on a daily basis.
By just having a simple conversation with the employee, you will not only be showing them that you care about their wellbeing, but in the longer term, you will be creating an environment where everyone communicates better and where it will be a lot easier to take formal steps in addressing chronic absenteeism, should this be required.
4: Cost benefit analysis
In the long run, encouraging an employee who has a cold or flu, to stay off work for 2 to 3 days is a lot cheaper than having them off work for 2 weeks due to pneumonia or having an entire division being unproductive because one employee who caught the flu, ended up infecting the entire office.
Many employees may be too afraid to ask for time off work due to illness and in some cases, may not have any sick leave due to them, but that does not mean that, as their manager, it is not within your discretion to pay them for a day or 2 to recover and get well, as opposed to have them potentially infect your entire staff complement.
5: Access to medical care
Whilst it is impossible for most small businesses to offer medical aid as a benefit to their employees, it is advisable that you encourage your employees to belong to a medical aid or make provision for medical expenses. As an alternative to traditional medical aid, you could research the affordability of primary health care for your employees.
This option usually involves the payment of a small monthly contribution (usually under R200-00) per employee, which entitles the employee to unlimited doctor’s visits and pays for prescribed medications, at the very least. Some plans even include x-rays, basic dentistry and basic optometry, all for a monthly fee that is less than the cost of one visit to a GP in private practice.
In a very small handful of cases, you will find patterns of absenteeism which are disconcerting or you may identify an employee who is more than likely, abusing their leave entitlements. As these are very delicate situations, it is best that you enlist the help of an employment law specialist, to ensure that you are complying with the procedural and substantive fairness requirements contained in the Labour Relations Act (LRA) of 1995.
Both the Employer and the Employee have certain rights and if it was possible to always be fair and honest we would have no problems. In real life it does not work like that.
The solution is to understand the law, apply it fairly and ensure that the employees also understand. If in doubt always consult an expert because if you do it wrong it may cost you dearly!
Acknowledgement with thanks
The above article is a compilation of the following articles:
Polity.org : Sick leave and medical certificates – The basics
http://www.polity.org.za/article/sick-leave-and-medical-certificates-the-basics-2012-11-19
Health24.com : Sick leave myths busted
entrepreneurmag.co.za: Sick and Tired of Employees being Sick and Tired?