Breaking down sick leave – Rights, obligations and limitations
19 Nov 2020
Many employers and employees appear to not know their rights or obligations pertaining to sick leave and the limitations in respect of taking sick leave. Section 22 of the The Basic Conditions of Employment Act, No 75 of 1997 (“the BCEA”) sets out the minimum terms and conditions as it pertains to an employee who is ill and accordingly requires time off from work to recover.
The sick leave cycle:
Employees often tend to think that their entitlement to sick leave works on an annual one-year cycle, whereas rather, sick leave works on a three-year cycle as per the BCEA. In terms of section 22 of the BCEA the sick leave cycle is a period of 36 months’ continuous employment with the same employer. Provision is made for an employee’s first six months of employment where he or she may take one day’s paid sick leave for every 26 days worked. Subsequent to the period of six months continuous employment with the same employer lapsing, the employee is then 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 for the three year cycle, which amounts to 30 days.
Employees must be mindful of the fact that sick leave is an entitlement to utilize only when they are ill and not for any other reason. Employees should be wary that if a pattern of regular sick leave begins to occur, even though sick leave has not been exhausted, and if that pattern affects business operations, this may have repercussions in respect of possible disciplinary action for abuse of sick leave, if the employer can prove same, alternatively the employer would need to follow the route of proving incapacity should the sick leave be excessive and affecting business operations.
Furthermore, employees must note that an employer is not obliged to accept the word of an employee claiming to be sick. The employee bears the onus of proving he or she was ill by way of medical certificates.
In terms of section 23 of the BCEA, the employee is required to furnish a medical certificate as proof of illness if they have been absent for more than two consecutive days, alternatively if they have been absent on more than two occasions during an eight week period. Further, employers often err by advising their employees that a medical certificate from a traditional healer is not a valid medical certificate. As per the BCEA provisions, a medical certificate from a traditional healer is valid as long as the traditional healer is a registered practitioner, who is defined as any practitioner certified to diagnose and treat patients and who is registered with a professional council that is established by an Act of Parliament. The Labour Court judgment in the matter of Kievits Kroon Coountry Estate (Pty) Ltd v CCMA and others  3 BLLR 241 (LC) has made it clear that an employer must accept a sick note or certificate from a traditional healer as long as the traditional healer is registered as mentioned above.
Finally, in the event that the employee has exhausted his or her paid sick leave in, for example, year one of employment, then the employee would need to take unpaid leave or annual leave by agreement with the employer if the employee becomes sick thereafter.
If you as an employee is uncertain of your rights in terms of sick leave, alternatively if you are an employer uncertain of your compliance in terms of sick leave and the BCEA, contact a specialised labour attorney or human resources practitioner for assistance in this regard.
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