The right to sick leave arises only when the employee is unable to work due to incapacity, meaning an inability to work because of sickness or injury.
The leave cycle begins on the first day of employment or on completion of the previous sick leave cycle. Employees working a five-day week are entitled to a thirty days’ sick leave in a thirty-six month cycle; those working a six-day cycle are entitled to 36 days.
Sick leave is not pro-rated. An employee may take all of his sick leave at the beginning (or any other time) of the cycle.
An employer is not obliged to pay sick leave where an employee is absent for more than two consecutive days OR on more than two occasions during an eight-week period AND fails to produce a valid sick certificate.
Inform the employee in writing beforehand if intending to withhold payment because sick leave has expired and no annual leave is available.
Unless there is a history of isolated one-day absences, the employer is not entitled to demand a sick certificate for a single day.
A certificate must state the employee was unable to work for the duration of the absence because of sickness or injury.It should (the law states must) also state the date and time of the examination; whether certificate is issued as a result of personal observations during an examination or as a result of information given; whether able to perform light duties; exact period of recommended sick leave.
The certificate does NOT have to state the reason for the issue of the certificate (as in nervous breakdown, flu and so on).That would be a breach of confidentiality.
You may request the doctor to verify the details if you suspect the certificate is fraudulent or an abuse of sick leave.
If you suspect the doctor has acted dishonestly in issuing the certificate you can report him/her to the Health Professions Council of South Africa.
If an employee is entitled to compensation for disability (permanent or temporary) in terms of the Compensation for Occupational Injuries and Diseases Act, then the leave conditions of the Basic Conditions of Employment Act do not apply – other than those periods for which no compensation is payable.Leave would be special leave and compensation recovered from the relevant authority – such as the COID Commissioner.
Abuse of sick leave is misconduct – charges of abuse of sick leave or absence without leave.The issue of false certificates entails a charge of fraud or dishonesty.
An employee who falls sick whilst on annual (or any other) leave is not entitled to substitute those days with sick leave.
These guidance notes must be read in the context of legislation and case law. If in doubt consult with Focussed Outcomes.
If you found this of interest, you should also look at:
The Eight Week Rule
Sick but on Annual Leave? Can I Swap Between the Two?
Hi Karen.
To some extent this may depend on your letter of appointment. An employer may, in terms of the Act, restrict sick leave in the first six months to one day for every 26 actually worked. Thereafter the normal cycle kicks in, but less the number of days taken.
Once all sick leave has expired the employer has no obligation to pay you for the absent days.
Regards,
Graham
Good day,
I had a lumbar laminectomy on the 5th July. I’m off for 6 weeks. I started working at the company on the 2nd April. Before I started working there, they were aware of my back condition. They have my doctors notes. Now I am told that I won’t get paid this month. Can they do that? Seeing that the sick leave cycle “kicks” in on first day of employment.
Hi Hendrina.
There is no mention in the legislation on how this should be handled. I would suggest that if less than four hours at work it would be a full day, if less than four hours a half-day or even quarter-day, but this would require agreement with the company. They may already have a policy dealing with this aspect.
Regards,
Graham
Good day, If i work from 7h30 in morning to 10h00 and feel sick and go home is this full pay or must I take it as 1 day sick leave. Until what time must I work to get paid for full day or when is it 1 day sick leave
Hi Lina.
Legislation does not address this matter. If you have been booked off sick in order to recuperate I believe that can be at any suitable venue, provided you are recuperating. Late night clubbing, water skiing and mountain climbing are likely to be seen in a poor light. You may also need to check your company’s sick leave policy. To avoid any issues, you might want to consider discussing with both your doctor and employer. Bear in mind, your employer is paying for your sick leave at a time when you are supposed to be unfair to work.
Regards, Graham
Is it compulsory to stay at your own address when on sick leave or can I go and recuperate at a different address , even a different town?
Sandra, If the medical certificate states you were unable to work as a result of the operation, and you are entitled to sick leave, then I cannot see why it should not be granted.
Hi there
I told my employer I will be off work for a day for a dentists operation. I got a certificate from the dentist for this day. I am now being told I must take it as annual leave. Is this correct practice?
Thank you
Sandra
Good day, Rakhali. My thoughts are with you at this difficult time.
I am not sure I have sufficient details to comment here. Email me if you wish. But an employer in cases of incapacity ill-health is entitled to investigate whether an incapacity is either permanent or temporary. If temporary the employer should attempt to cover your absence through measures such as hiring temporary workers. If long-term consider other reasonable considerations, but the employer can consider dismissal on the grounds of incapacity (after following the correct procedure).
If the employer has medical insurance for its employees it must endeavour to obtain such cover for the employee.
I am not clear whether such an enquiry has taken place.
I hope this assists.
Good evening please advise from may last year I discovered that I have bone marrow cancer I started chemotherapy until end of . December 2012 in January 2013 I went back to work but I could not walk due to warbling legs and back pain I was admited on the 27th Jan and operated on my spine was unable to sit from Feb -April 2013 I am stil of sick due to my slow healing I was asked to fill the long term incapacity leave which ends on the 25thSep 2013 now my employer/HR is querying my off sick .what should I do should I go back to work even though I’m unable to bend , sit for along time walk without assistance what shoul I do please advice
Regards
rakhali
Not necessarily, Donovan. If you have used all of your sick leave days then the company is not obliged to pay you for the subsequent days. You may then either opt for unpaid leave or use your annual leave.
Hope that assists.
Apologies for the delay but I have had sick issues of my own
Once your sick leave has expired the company is not obliged to pay you for any further such days. You can ask for such days to be treated either as unpaid or substitute annual leave.
Hope that assists.
Hi – apologies for the delay but I have had sick issues of my own
The Act does not differentiate between cosmetic and other illnesses and injuries. Indeed, strictly speaking neither the employee nor the surgeon are obliged to tell you of the reason for the operation as that is confidential, private information. If the medical certificate states the employee was unable to work, that will suffice for sick leave purposes.
Hope that assists.
Apologies for the delay but I had sick issues of my own
You can always be called to a disciplinary enquiry but that facts must support the allegations. If you have supporting medical evidence it is difficult to see how any allegation of absenteeism can be substantiated.
Hi Siphokazi – apologies for the delay but I had a sick issue of my own
It would appear the company is holding an enquiry to see whether your incapacity is temporary or permanent. They are entitled to a second opinion but I would suggest you make copies of the original Doctor’s report to the company Doctor. The company Doctor would also need to be of similar standing to the surgeon. You cannot be forced to return to work if unable to work. At best the company would be faced with two surgeons with conflicting opinions and who is to say which is “more correct”.
Hope that assists.
Hi Jo – sorry for the delay but I have had a sick issue of my own
This is a rather semantical issue as the law states “An employer is required to pay an employee in terms of section 22if 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.” {My emphasis]. Strictly speaking the Doctor should have been asked to include the Tuesday and can be asked to amend accordingly. The company is not obliged to pay you for the Tuesday under the current situation and annual leave may suit you better. A discussion with HR might also resolve the situation.
Hi – sorry for the delay but I had a sick issue of my own
A medical certificate may only be issued where an employee is “unable to work”. In this case it would appear to be only a consultation.
Hope that assists.
Good afternoon,
If you have use up your sick leave can the company them deduct the remaining sick leave from your Annual Leave.
Thanks.
Donovan
Good day,
I had sugery for an ectopic pregancy and was home for four weeks, is my company allowed to take my annual leave days to make up for my sick days, if they do i will be in -9, and not be unable to stay for the next 8 months it will be unpaid, and i still have to go for check-ups.
Please Assist Urgently.
Can you advise if we are obliged to treat a breast augmentation and the eight days of recovery thereof as sick leave or can we oblige the employee to take annual leave for this proceedure?
..
Good day
Please assist. Can a company call in for a disciplinery hearing if you have been away from work due to sickness and you have provided the Doctors notes as proof of your sickness.
Amonsgt other things, if one has had a miscarrieage and had to have an op to remove the foetus and then was booked off sick for over 3 weeks.
Regards
Sylivester
HI
I was involved in a car accident while on duty, I had to get a shoulder operation and the surgeon had initially booked me off for 4 weeks but upon check ups he extented the leave period for another 4 weeks as I am still in pain. I have submitted all the doctors reports to my company. They in turn have asked me to see their own doctor. My question is that would the company be able to force me to return to work based on company doctor’s report, regardless of what the first doctor has reported?
I was sick from Tuesday to Friday, i saw my Doctor on Wednesday as i was not feeling better and she booked me off for the rest of the week. She did give me a Doctor’s Note but only from the Wednesday to the Friday, my company now wants an amended Doctors note reflecting all four days or they will make the Tuesday Annual leave. What am is supposed to do? Does Tuesday not fall in the entitled sick days where a Doctors not is not required?
Hi
thank you for your time and advice. My husband went to the hospital to have sum lumps on his arm removed. the surgeon could not perform the minor op on the date that we visited him and asked us to come back a week later as we needed medical aid authorisation etc. My husband received a medical certificate for work which the company is now stating that the visit was a consult with the doc and therefore is not sick leave. Please can i have your opinion herein.
Thanks.
Hi. On the face of your comments this certainly appears improper conduct. Depending on your working hours you are entitled to a specific number of sick days in a three year cycle and must be paid for those if you submit a proper sick note.
Hi. If you have a properly completed sick certificate signed by a Doctor, your company must accept it as sick leave.
Hi, I went for a minor operation and was given a sick note that clearly states that I won’t be able to work for 5days. I gave it to my employer in time, however, after receiving the note, they reduced my working hours from 40hrs to 24hrs, meaning that I’ll be paid for 3days only, when I asked why? They said if you’re sick, they reduce your hrs, is this how things are done? I haven’t taken a sick leave before, so I don’t understand why they do this? Help
Good Day,
I am 12 weeks pregnant at 8 weeks i was booked off for 2 days by my doctor and had a valid Doctors Sick note Certificate, however my company has said anything to do with my pregnancy will come out of my leave not sick leave as ” pregnancy is not an illness” i now have flue and it is getting really bad , are they in the right to not give me sick leave even with a valid sick leave Certificate from the doctor?
A company is not required to pay an employee for time not worked, including where sick leave has been exhausted. It would appear on the limited information available that your husband could proceed on the groundhog incapacity (ill health). I do not know if the company ha insurance to cover boarding.
My husband was hospitalised for 2 weeks. The employer was informed about this. How ever he has used up all his sick leave and was tol he will not get paid. He was diagnosed with ankolysing arthritis of the spine causing temporary paralsis to the left side of his body. What is your advice to me on this.
Many thanks
Not sure what you mean, James. Being sick does not mean you have no responsibility for catching up with work missed.
Hi,
can one be penalised in the work place for being off sick? coming back to work, producing a sick certificate and getting the normal daily work and additional work just for being off sick?
Not sure of the circumstances here, Abbey. Is this a matter of incapacity (ill health)? I would need more detail before offering an opinion. Perhaps email me directly.
Regards,
Graham
Can i hold a disciplinary enquiry against an employee after asking her to go for second opinion to a doctor of my choice?
Hi. I think it would depend on the circumstances. For instance, if the majority of the day is lost it would be an entire day. If an afternoon then just the afternoon. Hope that assists.
Hi, What constitutes a days sick leave – in RSA? eg. employees is at work but falls ill and leaves after say an hour or two.. would that deduct as 1 day sick leave?
Your friend is correct, Hendrick; you cannot claim sick leave as it was not you that was sick. You can, however, claim family responsibility leave. Three days in terms of legislation, possibly more in terms of company policy. Trust that assists. Regards, Graham.
Hi, my son got his tonsils removed and I got a sick note from the physician so I can look after him, should this go through as sick leave, because someone just told me it cant as it wasn’t myself that was sick?
Thanks
Your help will be appreciated.
Hi. Under South African law you are only required to submit a sick note if absent for more than two days. Company policy might include Friday and Monday or following or proceeding a public holiday. Not sure I understand the second question. An employer does not have to issue a punishment but must be consistent.
Hope that assists.
Regards,
Graham Nicholls
HI, If I report to my supervisor that I can not make it to work as I’m sick, am I required to submit a sick note, even when I reported? Does this Absent with permission really exist? must the employer issue me with a panishment?
Hi Ruchelle. I also do not understand. If you have a genuine sick-note from the Doctor stating you were unable to work the company should accept it, assuming you have bought it to their attention. perhaps email me a copy of the notice of enquiry/hearing.
Regards,
Graham
Hi, I was sick on Monday and did only gone to a docter the Tuesday and the doctor booked me off for the Tuesday and the Wednesday. Now the work wants to hold a disciplinary hearing. I dont understand???
Hi John.
Sorry for the delay in responding. Some companies do have a policy requiring a sick note on Fridays and Mondays. The law states you are only required to submit a sick note if sick for more than two days. An employer cannot refuse acceptance of a legitimate sick note nor withhold salary.
Hope that assists.
i was book off sick for two days with valid sick cetificte by doctor on site where i work(contract security. the clients own doctor) now my security bosses is telling me they wont pay me because if you are sick on thursdays, fridays or mondays it is againts company rules to be sick on those days.
Thanks for your comment. I am assuming you are resident in South Africa.
I am not fully conversant with the motor industry collective agreements and sectorial determinations. I suggest you ask for written proof of their allegation and send it to me at graham@focussed-outcomes.co.za and I will respond. Certainly, once sick leave has been fully utilised there is no obligation to pay you, although you can apply to use annual leave. There is no legal requirement to tell you they will cease payment, although I feel there is a moral and ethical duty to do so.
Again, I am not clear as to the nature of the illness and whether we are talking about a temporary or permanent disability. If a disability is involved then it introduces a different angle to explore.
Hope that assists,
Graham Nicholls
Hi there
I have been off work due to an illness for a 3 weeks and my company asked for a detailed doctors report which my doctor sent them.
They have now not paid me my salary saying that they only need to pay 25% of it and there was not enough to cover my contributions. they say I need to claim from a sick fund. I would just like to know if this is legal and if they were supposed to inform me first before withholding my salary. I work in the Motor industry if that makes any diifference?
Hi Matt.
I assume you are in South Africa although using a UK email address.
The Basic Conditions of Employment Act (section 23) states that an employer is entitled to withhold salary where the employee “. . . on request of 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”. The act does not speak as to when that should be produced; that is before, during or after the event. If your company is well aware of the situation and you can produce other proof of the stay in hospital to support that, then that should be sufficient to wait your return to work.
You could also explain the dilemma to your Doctor and request an interim sick-note be faxed to the employer.
Trust this assists. If not you can email me at graham@focussed-outcomes.co.za
I had an operation two weeks ago. And the doctor said he will give me a sick leave certificate, when I come to have the stitches removed. Now the employer is demanding a sick leave note even though they know what is happening.I communicaed to the employer, when I will fax the sick leave certicicate. Is this behaviour allowed?
Absolutely not.
Can an employer force me to come to work while on sick leave?