A reader, who wants to go for reconstructive surgery, contacted me recently regarding the sticky issue of sick leave. She works as an accountant at a large firm.
She says the reasons for her decision are both emotional and psychological. She is of the opinion that the procedure will improve her quality of life.
Her doctor said he would provide her with a medical certificate that will notify her employer that she will return to work after a 10-day recovery period.
Our reader is however very concerned that she may not be allowed to take sick leave due to the fact that she is not “ill” in the true sense of the word. She would like to know what the law says regarding sick leave under these circumstances.
The Basic Conditions of Employment Act (BCEA) requires that employers grant employees one day of paid sick leave for every 26 days worked. The act further specifies that employees are entitled to 30 days paid sick leave per three-year cycle if they work five days per week or 36 days if they work six days per week.
The only time when an employer is not required to pay an employee is when he/she has been absent for more than two consecutive days or more than twice in an eight-week period, and he/she fails to produce a medical certificate from a registered practitioner.
The employer may then insist that the employee produces a valid medical certificate on every occasion of absence thereafter, allowing him/her to ascertain whether the illness is of a permanent or temporary nature and what the appropriate course of action is.
The above seems pretty simple, until we ask questions that challenge the reasons for absenteeism – such as our reader’s. Her question also opens the floor to other issues such as fertility treatments, severe sunburn and hangovers.
Many employers may feel the above is going one step too far. They may argue that they shouldn’t have to grant paid sick leave to employees who opt to have a procedure done or when they have been negligent or irresponsible.
However, the BCEA states that if employees can produce a medical certificate covering a period of absence, they are entitled to paid sick leave.
The Health Professionals Council of SA (HPCSA) ruled in May 2001 that no diagnosis may be stated on a medical certificate without the employee’s consent. So, in effect, employees are not required to divulge the reason/s for their absence.
Therefore, regardless of the reason/s for absence, and provided a medical certificate is produced, the employer is obligated to authorise paid sick leave.
The above ruling seemingly leaves the employer powerless to act against what may be termed as “delinquent absentees”. In the short term it might, but it could also be a doubled-edged sword.
Employees should be aware that if they take their sick leave indiscriminately, they may, in the long term, be at a disadvantage. If they deplete their sick leave by being off “sick” habitually, they may find themselves in a position where they will have to take unpaid leave should a serious ailment strike them down.
In conclusion, our reader will therefore be entitled to sick leave following her surgery and she shouldn’t have to fear any repercussions from her employer.
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Booysen & Rossouw Attorneys in Port Elizabeth specialises in labour related legislation. The firm also covers injury on duty cases as well as all other aspects of the law.
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