What is the Law on Sick Leave?
Getting sick is a natural part of life. While some people may seem more resistant or may recover faster than others, there comes a time in everyone’s life when you’re just too sick to work and you need some time off. It’s common knowledge that this type of absence is allowed and protected by law, but what many people don’t know is that there are various limitations in place with regard to sick leave, including how much is available to you and when it may be challenged by your employer. What is the Law on Sick Leave?
In reality, the Basic Conditions of Employment (BCE) Act 1997 works off of a 3-year cycle, if you work 5 days a week you’re entitled to 30 sick days leave in a three-year period. A common misconception with regard to South African labour laws is that sick leave is awarded and used on an annual basis. During this cycle, a worker is entitled to paid sick leave equal to the amount of time they would work in a 6-week period.
For example, if you work for 5 days a week, you will be given 30-days of paid sick leave every 3 years, while a person working 6 days a week would receive 36 days off. Or simply-
- 5 days per week for 6 weeks = 30 days
- 6 days per week for 6 weeks = 36 days
There are, however, exceptions to this rule, for example, employees who work for less than 24-hours per month are not granted the same benefits and must instead negotiate for their own sick leave.
Additionally, workers who have been employed for less than 6 months, and/or workers who have a fixed term of 6 months or less, will instead be granted 1 day of paid sick leave for every 26 days worked.
When does the Sick Leave Cycle Begin?
The cycle begins from the moment you are employed, although the standard days of sick leave are only available to you after the first 6 months of employment and any sick leave that is used during your first 6 months is deducted from your first 3 year period.
Once you have used your sick leave for that period, you will not be entitled to more until the next cycle begins and any additional sick leave that you require will be treated as unpaid leave.
Can Sick Leave be Taken All at Once?
Yes, sick leave can be taken in any portion once it becomes available. If the employee falls ill and decides to take all 30/36 days off at once, that is their choice.
Does Sick Leave Carry Over?
No, it does not. Sick leave that is not used during the 3-year cycle will be forfeited, thus, if you do not take any sick leave during a sick leave cycle, at the start of the next cycle you will only have the standard 30/36 days of sick leave available to you.
Are you Reimbursed for Unused Sick Leave?
No, you are not. Employees are not entitled to claim for sick leave that they did not use. As mentioned, unused sick leave simply disappears once the new sick leave cycle begins.
Do you Have to really be Sick?
While it may be common for people to take sick leave when they just want a day off, technically speaking, only those who are too ill to work should be taking sick leave and employers who can prove that their employees were not really sick can begin disciplinary action if they so choose.
When is a Medical Certificate Required?
According to section 23 of the BCE Act, whenever an employee is absent on sick leave for more than 2 consecutive days or on more than 2 occasions in an 8-week period, they will need to provide a medical certificate in order to receive payment for the days they missed.
In other words, you may take one or two days off work on sick leave without needing to produce a medical certificate, however, if you take off 3 or more days in a row or if you are sick on more than 2 occasions within 8 weeks, your employer can refuse to pay you for those days if you do not produce a medical certificate.
That said, if it is not reasonably feasible for an employee who lives on their employer’s premises to get a medical certificate, the employer may not deny pay for their sick leave.
How does Sick Leave work around Weekends/Public Holidays?
It’s not uncommon for people to take a day off on sick leave before or after a long weekend or public holiday in an attempt to extend their break. Now, as mentioned, if your boss can prove that you were not actually sick during that time, you may find yourself in hot water, however, it should be said that taking a Friday and Monday off, or taking off a day on either side of a public holiday does not count as consecutive leave.
In other words, you do not have to produce a medical certificate upon your return in order to receive pay, although occasionally employers will modify their contracts so that this is not the case and a medical certificate will be required.
Keep in mind, however, that certain behaviour can be viewed as abuse of sick leave which is a punishable offence.
What is Abuse of Sick Leave?
As noted, sick leave is only supposed to be used during times of genuine illness and employers may often suspect that it is instead being used as an excuse to spend some time away from work. If these suppositions are confirmed, the offending employee may find themselves facing disciplinary actions. The most common types of sick leave abuse include –
- Developing a pattern of taking sick leaves before and after weekends and/or public holidays – While this kind of thing may be accepted once or twice if your employer starts to notice a trend, they may begin to question the authenticity of your leave.
- Producing falsified or unregistered medical certificates – Only groups and individuals that have properly authorised to issue medical certificates may do so. Producing fake medical certificates could result in dismissal.
- Taking sick leave when you are not really sick – This is the most common form of sick leave abuse but it can still get you into a lot of trouble if you’re caught.
With all this in mind, employers should be warned that unfair dismissals or disciplinary actions can backfire and thus, they should only proceed with punishment when they are certain that sick leave is being abused.
Can Sangomas Issue Medical Certificates?
Certain traditional healers can issue valid medical certificates if they are registered with the Traditional Health Practitioners Council of South Africa.
In Conclusion – What is the Law on Sick Leave?
Almost all workers are protected by the same standards when it comes to sick leave, specifically, every 3 years they are entitled to sick leave equal to the amount of days they would work in a normal 6-week period. For people working 5-day weeks this means about 30 days of sick leave per 3 years, while those working 6-day weeks are allowed around 36 days per 3 years.
The exception to this rule involves people who work for less than 24 hours a month, as they are instead expected to negotiate for their own sick leave via contracts with their employers. Additionally, during the first 6 months of employment and/or when working on a fixed term of less than 6 months, a worker is only entitled to 1 day of sick leave per 26 days worked.
Medical certificates are only necessary when the employee has been absent on sick leave for more than 2 days consecutively or for more than 2 instances within an 8-week period (contracts may differ). If the worker does not produce a valid medical certificate after this point, the employer is not required to pay them for their time off.
Medical certificates themselves must be issued by authorised personnel such as licenced medical practitioners although traditional healers who are registered with the Traditional Health Practitioners Council may also issue them.
In certain circumstances, employers may doubt the authenticity of the sick leave claim. In these scenarios, if the employer can prove that the worker was not actually sick, produced a fake medical certificate, etc, they may proceed with disciplinary actions or even dismissals although these cases may backfire if there is not enough evidence to support the claim.
Sick leave itself can be taken in any arrangement, be it slowly over the 3-year period or even all at once. That said, rules for sick leave can differ depending on the workplace as many organisations create their own personalised contracts for their employees.
Sick leave does not carry over from one sick leave cycle to another and employees are generally not reimbursed for unused sick leave.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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