Employment law and industrial relations specialist Michael Botha says the practice of buying and selling doctor's notes is widespread.
According to South Africa’s labour law, the sick note entitles an employee to paid sick leave within the provisions of the Basic Conditions of Employment Act no. 77 of 1997 (BCEA), and provides an explanation for and validation of the absence to the employer.
However, the system is unfortunately open to abuse and the practice of selling and buying doctor’s notes is widespread and increasing. In my work as an employment law practitioner, I have on numerous occasions disciplined employees who have tendered false sick notes, which have often been signed by a medical practitioner’s receptionist or support staff. These persons are in a position of trust and it may occur that a dishonest person may sell sick notes. Employees often pay for a certificate; the price is dependent on the number of days of sick leave that they want. Therefore, it is vital to check and see that the certificate is signed by the practitioner themselves and not by support staff. But the tendering of a fake sick note is fraudulent; it is an attempt to receive pay for days on which the employee has not worked. It is actionable in terms of criminal law.
HR and HCM services and solutions specialist CRS Technologies contends that businesses sometimes misunderstand the basic function of the sick note and this can lead to problems in terms of people management. In business and labour, sick notes are of utmost importance, they play a far bigger role in effective HR management than many realise.
This is where the issue of proof of incapacity becomes relevant. According to the labour law, 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.
This indicates that the employee does not have to produce a sick note for each and every absence, but note that the Act specifies that this is required for paid sick leave. It is possible that an employer may still require an explanation of absence and may request a doctor’s note on that basis. In the event that a person is absent, claims sick leave and is outside the parameters, they are not entitled to paid sick leave.
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Who is certified to issue sick notes?
The law also specifies who is certified to issue medical certificates and how these should be managed. The persons entitled to issue sick notes are:
- Medical Practitioners (Doctor with MBCHB degree) that are registered with the Health Professionals Council of South Africa.
- Dentists that are registered with the Health Professionals Council of South Africa.
- Psychologists with a Masters degree in Educational, Counseling or Clinical Psychology that are registered with the Health Professional’s Council of South Africa.
The BCEA also makes reference to the Allied Health Services Professions Act No. 63 of 1982. Practitioners mentioned in this Act must be registered with the Allied Health Services Professions Council in order to issue certificates. Typically, this allows registration of ‘alternative’ or ‘other’ medical practitioners, including homeopaths, naturopaths, chiropractors, osteopaths and similar medical practitioners.
Certificates issued by clinics are usually not signed by registered medical practitioners, and as such these certificates are not acceptable as sick notes. This means that an examination by an unregistered nurse or another person does not produce an acceptable sick note. Where they are signed by a registered Medical Professional they are acceptable.
Section 23 (2) of the BCEA allows for members of registered professional councils to issue sick notes However, 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. Thus, registered nurses are entitled to issue sick notes.
It is important that we highlight Rule 15 specifically, which requires that information be supplied, including name of the patient, data and time of the qualification, a description of the illness, disorder or malady in layman’s terminology with the informed consent of the patient, as well as the exact period of recommended sick leave.
So, if a medical certificate meets the criteria outlined above, the guidelines in the BCEA in respect of payment for sick leave will apply. Sick notes are often tendered for medical issues where the employee is not sick – which CRS Technologies identifies as doctor’s appointments, routine checkups, examinations, tests, collecting medicine from the pharmacy, visits to specialists and going to the clinic.
Technically the employee is not sick and a sick note will not entitle them to paid sick leave. Employers may if they so wish allow this to be offset against sick leave.
The Traditional Health Practitioners Act was signed into law on 30 April 2014. It brought into effect the requirement that from 1 May 2015 Traditional Health Practitioners must register with the Council, this being the Traditional Health Practitioners Council and thereafter the traditional healer must conform to the requirements for issuing sick notes as other medical practitioners must.
Michael Botha is an Employment Law and Industrial Relations Specialist, and a consultant for CRS Technologies
