I dedicate this blog to educating on the law of sick leave. I will firstly deal with the principles applicable to sick leave. Secondly, I will discuss the law of sick leave in the public service and private sector employment respectively. The entitlements and the laws governing are different.
1. Sick leave is not earned or accumulated like annual leave. What this means is that one can go on sick leave at the beginning of their employment, in fact, even on the first day of employment. Whereas annual leave is earned at the end of each month of employment.
2. Sick leave, unlike annual leave is not negotiable. An employee is not required to obtain the consent of the employer in order to go on sick leave. However, an employee has a duty to inform the employer of his or her absence from duty on the basis of ill health by the quickest means possible. You need not go to work first and tell your employer that you are unwell, and I know some employers insist on that practice.
3. Any untaken paid sick leave days in a year or a particular period expires. This is different from annual leave that can be carried forward or paid for by the employer.
4. There are instances where producing or submitting sick leave to your employer is not mandatory. In other words an employee can be absent for a given period that is allowed by the law and not be under any obligation to give the employer a sick note.
Having dealt with the aforesaid principles, I will now take one through the public service and private sector employment regimes on this matter.
a) The public service
In terms of the General Orders governing the Conditions of Service of public servants, the following provisions are important to note:
i) Section 151.4
Over a period of 3 years, public servants are entitled to 6 months sick leave on full pay and if the employee exhausts the days, he or she is entitled to use annual leave days instead. In the event that the annual leave days are exhausted, the employee will then be given an additional 6 months sick leave but on half pay. This essentially means an employee in government can at least go for one year paid sick leave over three years. Any sick leave taken in excess of the year will not be paid at all. Employees living with HIV are therefore reasonably accommodated to access health facilities when they need to and take up treatment with ease. But do they know and take advantage of these generous entitlements?
ii) Section 151.2
This provision in essence gives employees the right to be away for at least two days without producing a sick leave note upon their return. In other words, you may decide to stay home when you are not feeling well and not see a medical doctor. You can choose to go see a traditional healer instead. You can go see a priest to pray for you or do any activities that can help you heal/recover faster. This is a remarkable provision as it does not force workers to go see a medical doctor. I have come across many people saying their employers force them to produce sick notes even where there were absent for some hours. Some employers actually say if you do not produce a sick note before 12noon you will be considered absent and face the possibility of a disciplinary hearing or not be paid.
b) Private sector
In the private sector, that is, for work outside government, the entitlements are somewhat less favourable. The conditions are set out on the Employment Act.
i) In terms of section 100(1), employees are entitled to 20 working days paid sick leave per year.
ii) In terms of section 100(2)(b), an employee is entitled to be absent from duty for a day without a sick leave note.
iii) In terms of section 151 (b), an employer who violates any of the above provisions is liable to a fine not exceeding P1000 or to imprisonment for a term not exceeding six months or to both. The penalties are remarkable. In the public service we do not have similar provisions.
It is noteworthy to mention that employers are prohibited from putting in place measures that are stringent or less favourable than the ones provided for. They can only raise the bar. For instance, an employer can only increase paid sick leave days and can only increase the period within which sick leave is not required.
In conclusion, I trust that the above clarifies the law on the area of sick leave and henceforth all workers and employers will be empowered to act accordingly.