Employees’ rights when sick and how employers can guard against sick leave abuse

As the KwaZulu-Natal health department investigates the death of a medical intern after allegedly being denied time off to focus on his health, what does the law say about the rights of employees regarding sick leave?

Nicky Coster, consultant at law firm Nortons Inc, says sick leave is regulated by the Basic Conditions of Employment Act (BCEA) which provides that during every 36-month sick leave cycle, an employee is entitled to paid sick leave equal to the number of days they normally work in six weeks.

For example, if an employee works five days per week, they are entitled to 30 days of paid sick leave over three years.

“The one exception is that during the first six months of employment, an employee is only entitled to one day paid sick leave for every 26 days worked.

The employer does not have to pay an employee for sick leave if he is absent for more than two consecutive days or more than twice in an eight-week period and does not produce a medical certificate stating he was unable to work.

“This regulates payment for sick leave and does not mean that an employee may not take sick leave if he has exceeded his entitlement, it merely means the employee does not need to be paid for such excess,” Coster says.

Yvonne Mkefa, director of the employment law practice at Cliffe Dekker Hofmeyr, says in terms of section 22 of the BCEA, employees are entitled to sick leave days as a basic or minimum term and condition of employment.

“The act goes as far as to, proportionally, afford sick leave days even as the employee starts his or her employment, and allows the employee to accumulate sick leave days during first months of his or her employment.”

She says an employee can also take unpaid sick leave in cases where he or she has depleted or has insufficient sick leave days. “Therefore, requiring an employee to report for work while sick is in contravention of the law, [and inhumane].”

Mkefa says courts have reinforced the principle that employers cannot discipline employees for absenteeism when it is based on valid sick leave and has been confirmed or certified by a medical practitioner.

While the law provides protection for employees, what happens in cases where an employee seems to constantly require sick leave and how can employers ensure there is no abuse of sick leave?

Coster says preventing abuse of sick leave requires a balance between respecting employees’ rights and ensuring that leave is used appropriately.

Some strategies that can be considered by an employer include tracking the frequency of sick leave, when it is being taken (such as a Monday or Friday, or the day before or after a public holiday) and to look for any other red flags.

“If there are red flags, this may justify further investigation by the employer.”

Coster advises that employers must ensure all employees are asked for medical certificates when they are absent for more than two consecutive days or more than twice in an eight-week period.

“Make it clear in employment contracts or policies that this requirement will be enforced. Check all medical certificates submitted to ensure they are valid.”

Coster says an employer may contact the medical practitioner who issued the medical certificate to confirm that they issued it, but it cannot ask the medical practitioner for details of the employee’s illness or condition without their consent.

Mkefa says employers are not without recourse should they suspect abuse of sick leave by employees.

To prevent the abuse of sick leave, the employer must implement absence management processes and systems. This ensures good and reliable record keeping which could assist in determining leave patterns and trends, Mkefa says.

She says the patterns or trends may include the overlapping use of sick leave and annual (vacation) leave.

“Where the employer sees a trend or pattern, they must investigate further to understand whether the absence is due to abuse or a genuine ill-health/incapacity case.

“In the former case, the employer can take corrective action; while in the latter they can initiate an incapacity/ill-health process. Both processes may result in the termination of employment. Each case is determined on its own merits,” Mkefa says.

Coster says in terms of the Occupational Health and Safety Act (OHSA), an employer has an ongoing duty to conduct a risk assessment in respect of the workplace and, where there are any health or safety risks, the employer is statutorily required to put control measures in place to mitigate any risks to health and safety

Section 8(1) of OHSA provides that every employer will provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

“So if a supervisor were to ignore a health complaint from an employee and compel the employee to continue working, this would be a clear breach of the employer’s duty of care under this section.

“If the employer does not comply with the OHSA, the employer may be guilty of an offence, and liable on conviction for a fine or face imprisonment for up to 24 months where a death occurs after the contravention,” Coster says.