23/06/2021
MEDICAL CERTIFICATES: DISPELLING THE MYTHS
A number of myths exist regarding medical certificates, e.g.
1. that employers cannot address employees regarding their absenteeism due to medical reasons until the employees have exhausted their sick leave in a particular cycle
2. that employees can stay away from work for up to two days, often linked to weekends or public holidays, without being ill, or
3. that medical certificates cannot be questioned..
The true facts are that employees must first of all be too ill to work in order to claim sick pay for periods of absence from work. If the employer has proof that the employee was not ill enough not to work, disciplinary action can follow for abuse of sick leave or absence without leave. In both cases the employee cannot claim payment for the period of absence.
Because the word "day" is not defined in the Basic Conditions of Employment Act (the “BCEA”), for purposes of the sick leave provisions, it can be assumed as meaning a "calendar" day. The employer may also require a medical certificate when the employee is absent on a Friday or a Monday because the employee is then absent from work for longer than the two days provided for in section 23 of the BCEA. The same applies when an employee is absent for reasons of ill health on more than two occasions in any 8-week period. The employer will then be able to require a medical certificate for every day's absence due to ill health for the remainder of his or her current sick leave cycle.
Medical certificates only constitute indirect evidence of an employee's illness. As documents "cannot speak for themselves", the employer can question either the authenticity or the content of the certificate if there is reason to do so. In this regard employers would be well advised to use the services of their own in-house medical personnel or that of a consulting medical practitioner before rejecting a certificate. The bottom-line, however, is that all medical certificates must comply with section 23 of the BCEA before they can be accepted, i.e. there must not be any reason to doubt their authenticity and it must be stated clearly that in the practitioner's own opinion, the employee was too ill or injured to work for the entire period of absence. This would require some proof of the fact that the patient was actually examined by the practitioner and an indication that the practitioner was of the professional opinion that the employee was unfit for work for the entire period of absence. A certificate that merely reflects what the employee told the practitioner does not meet these requirements.
It is recommended that employers, as part of their efforts to combat absenteeism, develop a clear policy regarding absence due to ill health. They must only accept medical certificates that comply with the legal requirements and provide sufficient proof of authenticity and proof of their contents.
Finally, the policy should state clearly that the employer may set standards for acceptable levels of absenteeism and that if an employee's level of absenteeism is deemed unacceptable, it could ultimately result in dismissal.
Barney Jordaan for Labourwise
Disclaimer: The material contained in this article is provided for general information purposes only and does not constitute legal or professional advice. Neither the author nor the publisher accepts
responsibility for any loss or damage that may arise from reliance on information contained herein.
