Sick leave abuse

Sick leave is one of the most abused forms of leave in South African workplaces, often because it is misunderstood. Sick leave gives an employee the opportunity to be absent from work when he/she is unable to work due to illness or injury, without losing income. Employers should fully understand the requirements and responsibilities to limit unnecessary costs and proactively manage the business risk linked to labour.

The sick leave cycle

The Basic Conditions of Employment Act 75 of 1997 (BCEA) states that an employee is entitled to six weeks of paid sick leave during each sick leave cycle of 36 months. This is equivalent to 30 days for an employee with a five day workweek or 36 days for an employee with a six day workweek.

This leave cycle begins, regardless of a probation period, on the first day of employment. Please note that newly appointed employees are only entitled to one day of paid sick leave for every 26 days worked during the first six months of employment. Paid sick leave taken during the first six months of employment can then be deducted from the total number of days available in the leave cycle.

Remember that employees are only entitled to sick leave when they are truly too ill to perform their duties.

Is it paid or unpaid?

The employer must first determine whether the employee has sick leave at his/her disposal. If so, the employer must then determine whether a medical certificate is required. A medical certificate must be provided if an employee is absent for more than two work days, or is absent on more than two occasions within an eight week period, even if the absences consist of one day each time. If the employer requests the certificate and no valid certificate is provided, the employer is not obliged to pay the employee for the sick leave taken.

If the employee does not have paid sick leave available, the employer has two options:

1. to treat it as unpaid leave; or
2. to give the employee the option to treat it as paid leave and deduct it from the employee’s annual leave.

In terms of the BCEA, an employer is not obliged to pay an employee if the employee has no available sick leave days, does not provide a valid medical certificate when the employer requires it, or is absent without the employer’s permission.

Abuse of sick leave

When a valid medical certificate is provided, this absence should generally be treated as a form of incapacity as the employee is inherently unable to meet the employer’s set operational standards due to a temporary medical condition. However, when the employer suspects that sick leave is being abused, it is important to follow a fair process to investigate the allegation of misconduct.

Employers may also question suspicious medical certificates, investigate and take disciplinary action if fraud took place.

Ask the following questions as part of your investigation to determine whether an employee’s conduct amounts to misconduct and whether it may indicate the need to initiate a medical disability investigation:

• Is the employee taking a higher number of sick leave days than usual in a short period of time?
• Is the employee’s sick leave exhausted and if so, should the employer consider other labour law aspects of a medical disability investigation?
• Do the dates of sick leave taken suggest a pattern, i.e. is the employee typically sick on Mondays and Fridays, before or after a public holiday, or off sick after payday?
• Did the employee submit valid medical certificates?
• Is there any evidence that may indicate other reasons for the employee’s absences e.g. domestic problems, family responsibilities etc.?

If an employee is regularly absent, it may also indicate that the employee is truly suffering from ill health and possibly that the employer should initiate a medical disability screening process to determine whether the employee is still able to perform his or her duties and meet the employer’s set operational standards.

Sick leave is only for the employee’s own temporary medical disability and not for their family members. Many employees still mistakenly believe that sick leave can be used when a family member is ill. This is not true. The law clearly states that sick leave is only for the employee’s own illness or injury.

It is important that employers deal with workplace issues as quickly and effectively as possible, while taking care to act objectively and consistently. By being proactive, the employer can greatly contribute to the sustainability and profitability of the business and promote a work environment with limited conflict, friction and misunderstandings, which in turn creates a structured environment that is receptive to growth.

This article is written for employers who resort under the BCEA, if you have any queries regarding your industry, contact the LWO for expert advice.

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