Sick leave – What are my rights as an employer

Rubber stamp over paper sheet with the word certified imprinted on it. Concept image for illustration of certificate of authenticity. White background and blur effect.Leave is a vital issue where employers need to be informed of requirements and responsibility involved in managing labour risk pro-actively as well as curbing unnecessary costs.  Between annual leave, sick leave, family responsibility leave, maternity leave and study leave, sick leave raises the most questions.  When is it due?  Is it paid or unpaid?  What is a valid medical certificate?  Who should pay for medical treatment?  What is the employer’s rights and responsibility?  Sectoral Determination 1 regulates leave regarding the contract cleaning sector.

When is sick leave due?
Paid sick leave is calculated during the first six months of employment as 1 day paid sick leave for every 26 days worked.  In a 36 month leave cycle an employee is entitled to 30 days paid sick leave (if the employee works 5 days per week) or 36 days paid sick leave (if the employee works 6 days per week).  This leave cycle commences, irrespective of a probation period, on the first day of employment and paid sick leave taken during the first six months of employment can be deducted from it.

Is it paid or unpaid leave?

Firstly, is paid sick leave due?  If yes, you must determine whether a medical certificate is needed.

  1. A medical certificate has to be presented if an employee is absent from work on more than one occasion or more than two consecutive working days within an eight-week period.
  2. A medical certificate is not needed if an employee is absent from work on one occasion for two or less consecutive working days within an eight-week period.

If paid sick leave is not due, there are two options:

  1. you can process it as unpaid leave; or
  2. you can process it as paid leave and deduct it from the employee’s annual leave.

When is a medical certificate valid?

  1. A medical certificate must state that the employee was unfit to work. It is not a valid medical certificate if it only states that the employee attended the clinic, as that will only prove where the employee was that day, but not entitle the employee to paid sick leave.
  2. A medical certificate may only be issued by a:
    • medical practitioner;
    • clinic nurse practitioner;
    • traditional healer (registered with the Traditional Healers Association);
    • community health worker;
    • psychologist; 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; or
    • any other health professional authorised to diagnose medical conditions.

What information should appear on a medical certificate?

Ethical Rules of Conduct for Practitioners registered under the Health Professions Act, provides the following main requirements:

  • name and capacity of the practitioner;
  • name of the patient;
  • date of examination;
  • exact period of recommended sick leave; and
  • date of issuing of the medical certificate.

What is the employer’s rights and responsibility?

An employer has the right to issue an employee with a warning as per the employer’s disciplinary code if an employee:

  1. fails to inform the employer of his/her intended absenteeism or sick leave; or
  2. does not present a medical certificate when obliged to do so. In this case the employer can issue the employee with a warning and has no obligation to pay the employee for days he was absent and had not presented a medical certificate for.

An employer has the right to consult an employee regarding incapacity and how it affects continued employment.

Contact the LWO Employers Organisation for all labour related issues at 0861 101 828, info@lwo.co.za, or visit www.lwo.co.za.