Sick leave 101: Dos, don'ts and when 'gross misconduct' applies

Entitlement during the first six months:

During the first six months of employment, employees are entitled to pro-rata sick leave. This means for every 26 working days, an employee earns one day of sick leave.

Entitlement after six months:

After completing six months of continuous employment, employees qualify for their full sick leave cycle, which covers a period of three years. The entitlement depends on the number of days an employee works per week:

• Employees working five days a week are entitled to 30 days of sick leave over a three-year cycle.
• Employees working six days a week are entitled to 36 days of sick leave over a three-year cycle.

When a sick note is required:

A medical certificate (sick note) is not always required when an employee is ill. However, a sick note must be produced:

• When an employee is absent for more than two consecutive days, or
• On the third occasion of illness within eight weeks.

In these cases, an employer may require a valid medical certificate before paying for the sick leave days.

When to submit a sick note:

Company policies may vary, but in most cases, employees are required to submit their sick note upon returning to work and once they have settled back in.

Valid sick notes:

A valid sick note must:

• Be a medical certificate,
• Be issued and signed by a registered medical practitioner, or any other certified professional who is legally authorised to diagnose and treat patients and is registered with a professional council established by an Act of Parliament.

Online medical certificates:

Phukuje explains that under Section 23 of the Basic Conditions of Employment Act (BCEA), the law requires that a medical practitioner be certified to diagnose and treat patients, but it does not specify whether the consultation must be in person or virtual.

Therefore:

• If a company policy does not specifically prohibit medical certificates from online or telephonic consultations, employees are entitled to submit such certificates.
• However, if a company’s internal policy explicitly disallows online medical certificates, employees must adhere to that policy.

Choice of doctor:

Employees have the right to consult any doctor of their choice. Employers cannot dictate which medical practitioner an employee should see.

"While some companies have free, dedicated nurses on site, you are still at liberty to go over and above that and pay for your own medical assistance and go to any place for medical assistance," says Phukuje.

Can employers challenge sick notes?

Some employers may choose to verify the authenticity of a medical certificate by following up with the doctor who issued it.

Employers are legally permitted to confirm certain details with the medical practitioner, such as:

• Whether the employee did, in fact, attend a consultation, and
• whether the dates of consultation and booked-off period correspond with those stated on the sick note.

Additionally, employers are entitled to verify the doctor’s credentials by checking the practitioner’s registration number on the Health Professions Council of South Africa (HPCSA) website to ensure that the doctor is properly registered and authorised to issue medical certificates.

"The limit in these cases is where employers are going into details of the medical condition, asking what the condition was, if the person is really ill, or what medicine was prescribed. That is not allowed as employers, but you're allowed to verify and check."

Sick notes do not have to disclose medical conditions:

Sick notes submitted by employees do not need to include specific details about their medical condition.

According to Paula Phukuje, employees have the right to privacy regarding their health information.

"That is the personal information of the employee. The employee has a choice when they see the doctor to either put full-blown details on the medical certificate or to keep it very general, and that is their entitlement to their personal information," explains Phukuje.

However, if an employer discovers that an employee has forged or falsified a medical certificate, this may be treated as a serious act of misconduct, which can result in disciplinary action.

Misuse of sick leave:

"When employers have enough evidence to show that there is intent to deceive the employer by pretending to be sick for the day, fraudulently submitting a document they put together themselves or changing the date coming back from sick leave, that is considered dishonesty. With enough evidence and with the employer being able to get written evidence or testimony from the doctor that confirmed they changed the numbers or dates on the certificate, it is enough evidence to pursue a disciplinary hearing, and usually for gross dishonesty, that is the dismissal offence, even if it is the first time," explains Phukuje.

Gross dishonesty can also apply when an employee presents a valid medical certificate but is later found to have misused the sick day, for example, by attending a rugby game or engaging in non-medical activities inconsistent with being unfit for work.

"A doctor has booked you off, but you're seen in public at an event; the dismissal of that employee is substantively and profusely fair, if you follow the disciplinary process."

To listen to Phukuje in conversation with Pippa Hudson on CapeTalk's Lunch Show, click below: