The BCEA and medical certificates
The abuse of sick leave is costing employers millions if not billions of rands every year in South Africa. In order to address this we will have to go back to basics and determine whether a medical certificate is a valid certificate that would justify the payment of the employee from his or her sick leave entitlement.
Section 23 of the Basic Conditions of Employment Act deals with proof of incapacity:
23. (1) An employer is not required to pay an employee in terms of section 22 if the
employee has been absent from work for more than two consecutive days or on more
than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person who is certified to diagnose and treat patients and who is registered with a professional council established by an Act of Parliament.
(3) If it is not reasonably practicable for an employee who lives on the employer’s premises to obtain a medical certificate, the employer may not withhold payment in terms of subsection (1) unless the employer provides reasonable assistance to the employee to obtain the certificate.
From this section of the Act it is clear that there are two requirements in order for a medical certificate to be a valid medical certificate; it must state that the employee was unable to perform his or her normal duties as a result of illness (or an injury) and must be based on the professional opinion of the medical practitioner.
In other words, a certificate that states that the practitioner “saw the patient” or “was informed by the patient” is not considered to be a valid medical certificates since the practitioner did not declare in his or her professional opinion that the employee was unable to perform his or her normal duties as a result of illness (or an injury). Such certificates are merely an indication that the practitioner saw the patient, in example a check up, or that he was informed that the patient was unfit for duty.
If the certificate is backdated, but it still stipulates that the employee was in the professional opinion of the practitioner unable to perform his or her normal duties during the backdated period, then we will have to accept such a certificate.
Routine checkups, examinations, tests, collecting medicine form the pharmacy and visits to optometrists, gynaecologists and physiotherapists do not qualify as sick leave. Sick leave is for when the employee is medically unfit to perform his or her normal duties.
The second requirement is that the certificate must be issued by a medical practitioner. A medical practitioner is described in the definitions of the Act as:
‘‘. . . . a person entitled to practise as a medical practitioner
in terms of section 17 of the Medical, Dental and Supplementary Health Service
Professions Act, 1974 (Act No. 56 of 1974);”
In terms of the above mentioned Act the following professionals are considered to be medical practitioners:
Medical practitioner (Doctor with MBChB degree) that is registered with the Health Professions Council of South Africa.
Dentist that is registered with the Health Professions Council of South Africa.
Psychologist with a Masters Degree in Research, Counselling or Clinical Psychology that is registered with the Health Professions Council of South Africa.
The above mentioned Act further of makes provision for practitioners registered under the Allied Health Service Professions Act 63 of 1982. Practitioners described in this Act must be registered with the Allied Health Service Professions Council. Practitioners registered at this council may also issue medical certificates and must be accepted by employers as proof of incapacity in terms of the Basic Conditions of Employment Act.
From the above it is clear that employers will have to verify medical certificates in order to determine whether they are valid or not. Employers are advised to start by contacting the Health Professions Council of South Africa or the Allied Health Professions Council of South Africa and enquire whether the practice number is registered and confirm the details of the practitioner it is linked to. If the practice number is not a number registered with one of the above mentioned councils, you may reject the certificate. Further to this we recommend that you contact the doctor in order to confirm that the practice exists and that the doctor did issue the certificate. If possible verify the address of the practice as well, we have found hairdressers at the premises where a medical practitioner was supposed to be. It turned out that the practice number was registered but that the practice didn't exist, the details of that doctor was merely used in order to falsify medical certificates.
It is also important to note that certificates that are illegible or that have been altered may be rejected and if it can be proved that the employee altered such a certificate, it could lead to his or her dismissal. The abuse of sick leave or the alteration of medical certificates constitutes gross dishonesty which is a dismissible offense.
Traditional Healer Certificates
Employers do not have to accept certificates from traditional healers unless they are bound by a collective agreement to accept such certificates. The Traditional Health Practitioner Act of 2004 was the declared unconstitutional in 2006 because public participation never took place before the Act was proclaimed. The “new” Act was assented to in 2007 but it has not yet been proclaimed in full. In the meantime there is no council where traditional healers may register. Traditional healer certificates with practice numbers are merely an indication that the traditional healer registered with the Interim Council, established in 2005 that no longer exists.
Regarding medical certificates issued by a clinical hospital, it is normally found that the certificates are not signed by a registered medical practitioner. Every clinic and every hospital has qualified medical practitioners in attendance, and any person who is ill must be examined by such a person.
An examination by a nurse or other person who is not qualified to carry out examination and diagnosis is not acceptable.
A certificate signed by a person other than a qualified medical practitioner who is authorised to make such examination and diagnosis is equally unacceptable.
This means that any certificate bearing an illegible signature and a rubber stamp is unacceptable and in such cases you must insist that the rule 15 (1)(j) of the Medical and Dental Professions Board Rules are complied with, otherwise you must treat the period of illness as unpaid leave.
Remember also that the those occasions where an employee takes only one day or two days off sick and of course is not required to produce a medical certificate, those days remain classified as sick leave days and are deductible from the employees sick leave entitlement.
Medical and Dental Professions Board Rules – Medical Certificates
(This specific document is not published nor sold by the South African Labour Guide. It is available free of charge from the Health Professions Council of South Africa. We provide this information as this forms part of the day to day issues that HR Managers / supervisors have to deal with.)
The following excerpt from the Ethical and Professional Rules of the Medical and Dental Professions Board of the Health Professions Council of South Africa can further serve as guidelines for employers in order to determine the validity of a medical certificate.
Rule 15(1) A practitioner shall only grant a certificate of illness if such certificate contains the following information, namely:
(a) the name, address and qualification of the practitioner;
(b) the name of the patient;
(c) the employment number of the patient (if applicable);
(d) the date and time of the examination;
(e) whether the certificate is being issued as a result of personal observations by the practitioner during an examination, or as the result of information received from the patient and which is based on acceptable medical grounds;
(f) a description of the illness, disorder or malady in layman's terminology with the informed consent of the patient:: Provided that if the patient is not prepared to give such consent, the medical practitioner or dentist shall merely specify that, in his or her opinion based on an examination of the patient, the patient is unfit to work;
(g) whether the patient is totally indisposed for duty or whether the patient is able to perform less strenuous duties in the work situation;
(h) the exact period of recommended a sick leave;
(i) the date of issuing of the certificate of illness; and
(j) a clear indication of the identity of the practitioner who issued the certificate which shall be personally and originally signed by him or her next to his or her initials and surname in printed or block letters .
(2) If pre-printed stationery is used, a practitioner shall delete words which are irrelevant.
(3) a practitioner shall issue a brief factual report to a patient where such a patient requires information concerning him or herself.
The above is largely self explanatory. Rule (e) refers to those occasions where, for example, the employee has been off sick on Monday and Tuesday and then on Wednesday he goes along to the Doctor and informs the Doctor that he had flu since Monday and requires a sick note. The Doctor will then normally write in the sick note that "I was informed that the patient etc."
You do not have to accept this as genuine illness. The Doctor is only telling you that the patient says he was ill. The Doctor is not certifying that he made an examination and is able to confirm the illness.
You would therefore be perfectly justified in informing the employee that the time taken off will be regarded as unpaid leave and that in future he should visit the Doctor on the first day of illness and not and not after he has recovered from the alleged illness.
Rule (f) states that the Doctor should give a description of the illness. This may not always be stated, particularly where the nature of the illness, if disclosed, may embarrass the patient.
If you have extremely good reason, for example if this employee is regularly off sick, then perhaps you could assist the employee in typing a letter (which the employee must sign) for the Doctor, authorising him to disclose to you the nature of the illness. Alternatively you could request the employee to go to the Doctor and obtain the information in terms of rule (3).
Note that in terms of rule (j) the medical practitioner is required to print his name and initials on the medical certificate in addition to his usual signature.
Remember also that these rules are not law, they can be used as guidelines. The medical profession agreed to these rules for the guidance of the medical profession only.
Therefore an employer cannot reject a medical certificate if it does not comply with these rules. An employer can only reject a medical certificate if it does not comply with section 23 of the Basic Conditions of Employment Act.
Written by André Claassen & Jan du Toit
For more information contact Jan du Toit email@example.com
Article first published on the SA Labour Guide website