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Interpretation of sick leave

Interpretation of sick leave

Employers are often convinced that employees are obliged to submit a medical certificate for one day’s absence and consequently withhold paid sick leave from employees if said is not received. Section 22(5) of the Basic Conditions of Employment Act (BCEA) 75 of 1997 stipulates that subject to Section 23, employers must pay employees for a day’s sick leave.

Section 23(1) stipulates that employers are not required to pay an employee in terms of Section 22 in the following instance:

  1. When an employee has been absent from work for more than two consecutive days; or
  2. when an employee has been absent from work on two occasions during the same eight week period and at the employer’s request, fails to produce a medical certificate as proof of incapacity.

Provisions in a contract of employment stipulating that an employee must submit a medical certificate to qualify for paid sick leave when absent from work on a Monday, Friday, before or after a public holiday or before and after an off day is unlawful. However, Section 49 of the Basic Conditions of Employment Act allows variation of the basic conditions of employment, with a few exceptions, through a collective agreement when it is concluded in a bargaining council which stipulates that a medical certificate must be produced when employees are absent before or after the aforementioned days.

This means that employers can only withhold paid sick leave when employees are absent from the third day onwards or when employees are absent on two different days in the same eight week period and fail to submit a medical certificate. Thus, when employees are absent for one or two consecutive days, employers have to grant paid sick leave, even if the employees do not produce a medical certificate that was issued by a registered medical practitioner.

The employer’s guide to sick leave. 

ABOUT THE AUTHOR

Eleanor du Plessis obtained her LLB degree and Post Graduate Diploma in Labour Law from the University of the Free State. She is an admitted attorney of the High Court of South Africa and has 2 years and 4 months experience in the field of labour law.

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