SICK LEAVE: A prescription for the sick, lame and lazy?
“I’m sick of my staff always being away!” Ozzie moaned to Mona his wife on opening his pharmacy Monday morning. “You, skattie, are the only one I can count on being at work. Everyone else is always either sick or on leave!” At that unfortunate moment Mac Tutu (the scooter driver, known as Mac 2 to the traffic department) arrived.
“Well! Look who’s finally here, Mona. Where were you Friday and Saturday when I needed you most?”
There followed those 3 words every employer dreads: “I was sick.”
“But I saw you at the Casino Saturday night!” said Mona, greatly surprised.
“Yes I was there, on doctor’s orders of course, to de-stress from all the pressure of my high speed job, and to try supplementing my humble wages” admitted Mac.
(1. Must he not stay at home in bed if he is sick?)
“So, where is this “doctor’s orders” medical certificate?” asked Ozzie.
“I don’t have to give you one” replied Mac politely (2.Is he right?), “but I have a note from the Sangoma”. (3.Is this legally valid?)
Ozzie studied it carefully. “But it doesn’t even say what was wrong with you! (4.Is this a legal requirement?). And I notice you only saw him this morning because its got today’s date on it! Totally unacceptable” exclaimed Ozzie. (5. Can a certificate legally be backdated?)
“In future I demand a valid medical certificate (6.What exactly is such a certificate?) for any absence (7. Is this a valid rule?), or you won’t get paid sick leave and I will give you a written warning for unauthorised absence” warned Ozzie. (8. Can this be fair, or is Ozzie just angry?)
“But boss, I haven’t even used all my paid sick days yet” Mac pointed out reasonably.
“Yes you have. You’ve been paid more than 12 days sick leave already this year - and its only March! (9. Is this calculation correct?). And what’s more Mac, I can fairly even “terminate your services” (in plain language: fire you!) for ill health before you have used all your paid sick leave! (10. Surely this statement goes too far?)
“But boss, I’m entitled to get paid from my annual leave when my sick pay is finished (11. Really!?), especially because I’m genuinely sickly. You can even phone the doctor at the hospital and ask him! (12. Should Ozzie do this?)
“Mac, if your illness doesn’t vanish as fast as you drive I’m going to insist on you having a medical examination, at my cost of course, and the doctor telling me exactly what’s wrong with you – if anything is ” decided Ozzie firmly. (13.Can he insist on a second opinion? 14. As he is paying, can he also insist the doctor discloses Mac’s diagnosis to his employer?)
You be the judge!
ANSWERS:
1. Must an employee stay at home in bed if sick ?
Not necessarily. This will depend on the nature of the illness (or injury) – which, to make things more difficult, need not be disclosed. (See question 3 below). You would reasonably expect someone with pneumonia to be bedridden, but not necessarily someone booked off for a common cold or stress. The best thing for stress might be to go to the movies, shopping or yes, even the casino!
2. When can the employer legally demand a medical certificate?
The employee is wrong in this example – he must supply a certificate.
Firstly, a medical certificate may only be demanded of an employee who has been absent from work on account of illness or injury for more than 2 consecutive (ie “calendar” not “working”) days.
This employee in our example has been sick for 3 consecutive days. The law says everyone is entitled to get sick now and then, and be paid without the need to produce a certificate, for sick absence, and states that up to 2 consecutive days is reasonable without a certificate.
However, this employee was away (sick) Friday (day 1), Saturday (consecutive day 2) and Sunday (consecutive day 3) – more than 2 consecutive days. The same principle of counting would apply before or after his day off or public holiday.
But as employees get smart and realise this, they take fewer than 3 consecutive days sick absence, and still get paid sick leave, and this tends to lead to abuse of sick leave.
This is where the second legal rule regarding providing a medical certificate applies. You may also legally and fairly demand a certificate of an employee who has been absent from work due to illness or injury and been paid sick leave on more than 2 occasions during an 8 week period. “Occasions” does not mean “days” but incidents.
For example, assuming Mac still has paid sick leave in credit but was away only Saturday (making it 2 consecutive days only), he will get paid without a certificate for this absence (occasion 1). If in two weeks time he is again absent sick for a day (occasion 2) he gets paid without a certificate again. He is again absent sick a week later, let’s say for a day (occasion 3), and is paid without a certificate. If within another five weeks of occasion 3 (ie within an 8 week period of occasion 1) he is again sick for less than 3 consecutive days, you can demand a certificate before paying him. This is because he has been paid for sick absence in circumstances where you could not legally and fairly demand a medical certificate, on more than 2 occasions during an 8 week period.
To help you curb sick abuse even more, if you think about it, logically the 8 week period is a rolling period always starting from the last “occasion” of 1 or 2 consecutive days paid sick absence, for the next 8 weeks, potentially.
3 . Is a certificate from a Sangoma legally valid ?
No. And not because we discriminate culturally, but simply because a certificate from anyone, including a Sangoma and Nursing Sister, who is not registered with the Health Professionals Council of South Africa to diagnose and treat patients, is not a legally valid medical certificate. (Nurses are registered with the Nursing Council, not HPCSA.). You can lawfully reject such certificates (which do not have an HPCSA registration number printed on them) and not pay (and even discipline for unauthorised absence – see question 8). Whether you should reject a note signed by the clinic nurse after your employee got up at 5am and waited half a day to see a busy doctor for less than 5 minutes, is your policy decision – understand, however, if you do accept it, you set a precedent ( but probably act fairly).
The opinion of the HPCSA, which regards the nursing council as a ‘professional council”, is that nurses can sign certificates within their scope of practice – ito Basic Conditions of Employment Act 23(2). If you get a certificate signed by a nurse for anything more than a minor ailment such as a cold or a minor strain, phone the nurse and find out about her “scope of practice.” If she has a primary health diploma, then she is entitled to diagnose, assess and treat such cases, and you should accept the certificate. Other nurses, however, do not have even this capacity, and you can reject.
4 . Must a medical certificate state what is wrong with the employee ?
No. There is a constitutional right to privacy. Accordingly, the law simply says the certificate must only state that the employee was unable to work for the duration of the illness or injury. However, this must be specific stated dates. Not vague – e.g. “should be fit for work approximately…” is rejectable.
You nevertheless can, and as a concerned employer probably should, naturally ask what was wrong. The employee then is not compelled but chooses whether to disclose health information to you or not.
5 . Can a certificate legally be backdated?
Yes. Employee feels ill day 1 and hopes it will go away. On day 2 he thinks he may be feeling a little better but not fit enough to work. On day 3 it really hits him and he decides to see a doctor. The doctor books him off from day 1 but the date on the certificate is day 3. Another reason is that some illnesses incubate and only become visible after a few days (e.g. measles) but you feel ill from day 1.
However, you should be alert for the doctor who indicates on a certificate words to the effect that “the patient informs me”, rather than words to the effect that “I have personally examined...” The former should be rejected as it is the duty of the person issuing a valid certificate to examine and diagnose.
6 . What exactly is a valid medical certificate?
Unfortunately this is not an easy question to answer as the law does not spell out an answer. The Health Professions Council of South Africa (HPCSA), however, has put out non- binding guidelines to doctors to assist on uniformity and interpretation. These suggest the practitioner’s name address qualification and HPCSA registration number; the patient’s details; the date of the visit; the personal examination; the dates unfit for work; the practitioner’s signature.
Contrary to what some employers believe, doctors really do try to be honest in their certificates acting in good faith on information from the patient and their own observations. For the exceptional unethical few, your remedy is a report to the Medical Association of South Africa who will then conduct an investigation followed, if necessary, by appropriate discipline action.
7 . Is production of a medical certificate for any absence a lawful and reasonable instruction ?
No. See question 2. However, many employers say this justifying it on the basis of “excessive” and “patterns” of sick absence. The correct remedy is rather the application of the “ 8 week rule”, which usually puts the brakes on abuse, or failing that, the mention of possible termination for genuine incapacity due to ill health or injury (see question 10)
8. Can you not only not pay for sick leave but also take appropriate discipline action when an employee fails to produce a medical certificate in circumstances when you can lawfully and fairly demand one?
Yes! The certificate is a magic piece of paper. It produces money (paid sick leave, if in credit) and also authorises (usually at the end of the absence) what started as absence not authorised by you. Without a certificate, the “no work no pay” rule applies, plus the rule that all absences from the workplace must be authorised beforehand. In addition, you would be wise to have another rule which should apply in this type of situation: the “contact me “rule - typically : “ Contact me personally by latest 30 minutes after the start of your shift, daily, if late or absent for any reason.” Breach of this rule in addition to unauthorised absence would likely justify at least a verbal warning on the first occasion.
9 . Is it correct that 5 day / week employees get 10 days paid sick leave a year and 6 day / week employees 12?
No. Sick leave works in 3 year cycles from anniversary date. During the first 6 months of cycle 1 an employee earns paid sick leave at the rate of 1 day for every 26 worked or entitled to be paid (ie including public holidays). On day 1 of month 7 the full balance falls due (“accrues”). For 5 day/week staff this total number is 30 days paid sick leave over 3 years. For 6 day/week staff, 36.
If staff take paid sick leave in advance of accruing it, and their employment terminates for whatever reason before they have actually earned it, you can legally deduct the unearned but paid sick leave from remuneration you owe them, thereby recovering it.
10. Can you dismiss for ill health before an employee has used up all paid sick leave?
Yes. Our labour law lists incapacity as one of the fair reasons for dismissal. This means inability to perform the job due to ill health or injury. There is no requirement that all paid sick leave must first be exhausted.
However, the Code of Good Practice: Dismissal sets out guidelines which should be followed before a dismissal for incapacity will be fair. These include an evaluation of whether the incapacity is temporary or permanent, whether the employee can perform all, some or none of his usual job, whether the job or its circumstances can be changed, if there is another suitable job, and if dismissal is appropriate. So, while it may be a useful thing to say to try establish if sick absence is genuine or not, be as careful when dismissing for incapacity as for other dismissals.
11. Do employees have a right to be paid for sickness from annual leave pay when their paid sick leave is exhausted ?
Absolutely not. You can and usually should say no, except perhaps for the most compassionate of cases. They are 2 entirely distinct types of leave. Annual leave is there to be taken consecutively over 21 consecutive (there’s that word again ie calendar!) days, so as to give employees a complete rest from work, even if they are healthy. In fact, and this is not widely known by both employers and employees, so clear is the distinction that if an employee gets sick while on annual leave, his annual leave is extended by the number of sick days! So, don’t “reward” unpaid sick absence by paying from annual leave except in exceptional circumstances.
12. Should you contact medical practitioners for information?
It is useful to try doing so when you are in doubt and need information. But understand clearly that they do not have to talk to you, let alone provide the information you seek as they have the right to claim patient/ practitioner confidentiality.
However, usually if you are polite and explain the background to your request (and, if appropriate, that the patient may be on the verge of losing his job) and that factual medical information may help solve the problem, you may be surprised to receive co-operation.