Sick Leave

One of the
benefits emanating from an employment contract to cater for periods of illness
during an employment relationship is sick leave. It is a form of financial
solidarity with a member of staff at the workplace, a recognition that a sick
employee will not be performing at normal levels if he goes to work, which in
certain occupations may be a safety concern, and also a basic precautionary
measure to avoid potentially harmful exposure to other members of staff in the
case of certain diseases, e.g. infections.

Definition

Sick
leave is defined as leave granted to the employee whenever an employee presents
a medical certificate certifying incapacity for work (Minimum Special Leave
Entitlement Regulations). So in essence, it is to be granted when a medical
opinion is presented that an employee is unfit for work.

The
statutory sick leave entitlement varies considerably being of a minimum of 2
weeks with full pay in sectors not covered by Wage Regulation Orders (WROs) to
varying higher entitlements in sectors covered by WROs.

NSO data
for 2011 suggest a figure of an average utilisation of 8 days sick leave per
employee in the public sector and 3.5 days per employee in the private sector.
This is a considerable variance in utilisation rates, in part because the data
on the private sector is based on Social Security statistics which exclude the
first three days of sick leave. It merits further analysis in order to identify
differences in the rate of utilisation in different sectors and different
occupations, gender distribution and age distribution before one can attempt to
reach a conclusion as to the causes of this discrepancy.

Sick
leave is usually paid in full by the employer for the first 3 days of any
sickness absence and then the employer pays the full pay less a sum equivalent
to the amount set for sickness benefit in terms of the Social Security Act.

Control
of abuse of sick leave naturally an employer may try to limit costs related to
sick leave absence, the most common tool used is the engagement of a medical
practitioner to examine an employee to ascertain fitness for work thereby
curtailing potential abuse.

There
have also been schemes whereby employers pay employees a bonus for
non-utilisation or minima utilisation of sick leave. One can understand the
reasoning behind this, but this may backfire on the employer as a sick employee
may have an added incentive to go to work even if ill and, apart from not
performing normally, may also expose himself as well as his colleagues to risks
to their health.

Health
status can affect work and work, in turn, can also affect health status.

There are occasionally different medical opinions as regards either
whether an employee is to be certified at all, or as to the forecast duration
of incapacity for work. It is important to note that if an employee presents a
medical certificate attesting to an incapacity for work, at law that employee
is entitled to sick leave.

Some WROs
expressly make a provision for the possibility of an employer to send a medical
practitioner to examine a sick employee, but this does not allow an employer to
ignore another practitioner's certificate. In cases where there are
considerable differences in opinion, it is up to the medical practitioners to
discuss a particular case and try to arrive at a consensus, both as regards the
presence or otherwise of an illness and any consequent incapacity. It is in the
employer's interest and his responsibility to ensure that, as far as possible,
he has peace of mind that the employee is really fit to return to work,
especially when the work activity of the employee may have an impact on the
health and safety of his colleagues.

Some collective agreements have provisions exempting some medical
conditions from being considered as sick leave. Similarly some employers choose
to fail to consider employees suffering from some medical conditions as being
entitled to sick leave. These include sunburn, period pain, hangovers etc.

The argument
brought in some of these cases is that some conditions are self-inflicted and
therefore sick leave should not be granted. This is illegal because it is not
the cause of the condition which is at issue here but whether a condition
renders an employee unfit for work.

This is a
medical assessment and the employer has to depend on medical advice. Somebody
in intense pain because of severe sunburn or who has a splitting headache and
is vomiting is in no condition to work, whatever the cause. Secondly, a
considerable number of diseases and activities that may lead to medical
conditions could be arguably considered as ‘selfinflicted'. These include
diabetes and its complications, ischaemic heart.