There is constant confusion under employees as well as employers regarding an employee’s entitlement to sick leave. This article is covering the rights of the employee and the employer in terms of the Basic Conditions of Employment, 1997 (The BCEA) in terms of Sick Leave Entitlement.
Sick leave is governed in terms of section 22 of the BCEA which states that:
22. Sick Leave
(1) A “sick leave cycle” means the period of 36 months’ employment with the same employer immediately following:
(a) an employee’s commencement of employment; or
(b) the completion of that employee’s prior sick leave cycle.
(2) During every sick leave cycle, an employee is 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.
(3) Despite subsection (2), during the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
(4) During an employee’s first sick leave cycle, an employer may reduce the employee’s entitlement to sick leave in terms of subsection (2) by the number of days’ sick leave taken in terms of subsection (3).
In short, this means:
From the moment an employee commences his employment, his/her sick leave cycle starts. This does however not apply to employees who work less than 24 hours per month for an employer. These employees may have to negotiate sick leave with their employers.
During the first six months of employment, an employee (this also applies to an employee employed on a fixed term basis for a period of 6 months or less) is entitled to 1 day’s paid sick leave for every 26 days worked. If the employee needs extra sick leave, it will be in the form of unpaid leave.
There is nothing in the Act that suggests that employees employed on a fixed term contract
for more than 6 months, are not entitled to all the sick leave afforded to them by the Basic Conditions of Employment Act.
Employees employed for longer than 6 months, whether on a fixed term or permanent contract, are entitled to sick leave as follows:
- An employee who works 5 days per week is entitled to 30 days sick leave every 36 months.
- An employee who works 6 days per week is entitled to 36 days sick leave every 36 months.
- An employee who works Monday to Friday (5 days), plus every second Saturday, is entitled to 33 (30 + 3 Saturdays) day sick leave every 36 months.
If an employee who works 5 or 6 days per week for example, are absent for reasons of illness for a period of 30 days, the employer has to accept this, on condition that the employee is booked off by a medical practitioner.
In other word:
If the employee commenced duties in January 2020 and works a 5 day week plus every second Saturday, and took 21 working days sick leave in January 2021, that employee will be left with a balance of 12 days sick leave entitlement until the end of his/her sick leave cycle (36 months), which only ends in January 2023. Provided that the employee provides a medical certificate for his/her absence.
Any agreement wherein an employee agrees to take not more than 10 (or any number of days less than the number of days to which an employee is entitled) days sick leave per year, is invalid.
An employee is entitled to ALL his/her sick leave from the first day of the 7th month after commencing employment.
Only an employee who is too sick to work, may claim paid sick leave. If the employer is in a position to prove that the employee was not sick, disciplinary steps may be taken against the employee. When an employee abuses his/her sick leave, the employer may commence with disciplinary steps against such employee, depending on its disciplinary code and the employee’s disciplinary record.
Proof of Illness:
Proof of incapacity is governed by section 23 of the BCEA and states:
23. Proof of incapacity
(1) An employer is not required to pay an employee in terms of section 22 if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner 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.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.
If the employee is sick for 1 or 2 days, the employer has to grant paid sick leave, even if the employee is not booked off by a medical practitioner.
If the employee is absent for more than 2 consecutive days without a medical certificate, the employer does not have to pay the employee. This means that an employee needs to produce a medical certificate on the 3rd day in order to receive his/her pay for the 3 days.
An employer MAY NOT require a medical certificate when the employee is absent on a Friday or a Monday, or the day before or after a Public Holiday!!
The Basic Conditions of Employment allows an employee to be absent from work for more than 2 consecutive days or on more than 2 occasions during an eight-week period, before having to submit a medical certificate.
It is important to note:
When an employee who does not work on Saturdays and Sundays, is absent on a Friday and Monday, the employee is NOT absent from work for more than 2 consecutive days. The employee is absent only on the Friday and the Monday (2 consecutive work days) – and will only have to produce a medical certificate if he/she is absent on the Tuesday as well.
The employee’s absence on the Friday could be seen as the first occasion, his/her absence on Monday as the second occasion – which means that the employee has not been absent from work for more than 2 occasions during an eight-week period.
A medical certificate is a document issued and signed by someone who is certified to diagnose and treat patients and who is registered with a professional council.
This may include dentists, psychologists, interns and nurses. Some sangomas or traditional healers do belong to a professional association, but as this is a voluntary association, they are excluded as persons who may issue a medical certificate.
The “status” of a medical certificate constitutes indirect evidence of an employee’s illness. Where a medical certificate states no more than that the employee was examined by the doctor, and that the doctor “was informed” that the employee was unfit for work, the medical certificate cannot be accepted as proof that the employee was in fact ill.
This does not preclude the Employer from implementing conditions in the Contract of Employment regulating stricter time-frames and/or adherence to proofs of incapacity, however such failure to render proof would be deemed as misconduct under such circumstances and would not preclude the Employee’s right to paid sick leave.