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SICK LEAVE DURING ANNUAL LEAVE

In Labour News by Jan Truter33 Comments

Question: If an employee falls ill during annual leave, must the employee get paid sick leave? Or must the employee’s annual leave entitlement be extended?

Answer: No, the employee does not get any additional pay, nor does the employee get extra leave days for the days on which he or she was ill.

Brief explanation: Sec. 22(5)(a) of the Basic Conditions of Employment Act provides that an employer must pay an employee for a day’s sick leave the wage the employee would ordinarily have received for work on that day. As the employee is on leave he or she would not work on that day. The employee is therefore not entitled to sick leave.

Note: These snippets of information are based on frequently asked questions and will be circulated to subscribers on a regular basis. Labourwise subscribers are invited to submit questions on matters that they believe would be of general interest to employers.

Disclaimer: The material above 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 in this article.

Comments

  1. how many sick leave days amI entitled to per annum as an employee

    1. Author

      To Mduduzi: Sick leave works in 3 year cycles. In every 3 year cycle an employee is entitled to the number of days sick leave that is equal to the number of days the employee would normally work in a period of 6 weeks (For example, an employee who works 5 days per week is entitled to 30 days’ sick leave in a 3 year cycle. That is an average of 10 days per year.)

  2. If you are scheduled to work on a public holiday and you take off sick, should one day’s sick leave be taken from your sick leave entitlement or not.

    1. Author

      Reply to Shafiek: The BCEA does not address this situation. The purpose of paying an employee for sick leave is so that the employee is not out of pocket due to illness. However, as the employee is already entitled to pay (without having to work) because it is a public holiday, it is our view that sick leave should not be granted in the situation you have sketched.

  3. What qualifies as “working from home” leave. Does one need to be able to perform a full job role function in order for it to qualify as working from home?

    1. Author

      Reply to Ash: While there is nothing in employment legislation that refers to “working from home”, it is quite permissible to enter into such arrangement. However, in order to avoid confusion and potential disputes, the terms and conditions relating to a working from home arrangement should be clearly defined and preferably recorded in a written agreement.

  4. I have a employee with eight months service. In this eight month she used up all her sick leave. Now she take off afternoons because she doesn’t feel well. Can I deduct sick leave per hour?

    1. Author

      Reponse to Hermanus: Where sick leave has been exhausted the rest will be unpaid. You can apportion it according to hours.

  5. An employee has exhausted her sick leave for this cycle, Show now wants it as annual leave. Is this permissable?

    1. Author

      Response to Camillah: Where an employee has exhaused her sick leave, any additional absence due to illness will be unpaid. However, if she has annual leave to her credit she may apply for annual (“occasional”) leave.

  6. If an employee phones in to say they are sick but they want it to go down as annual leave rather than sick leave is this ok? They haven’t been off sick until the phone call this morning but I am aware that there are 2 employees in the same position and if both wanted to go for the same promotion one would show that they have had sick leave and the other hasn’t as they have taken it as annual leave, would this be fair?

    1. Author

      Reply to Vic: Sometimes an employee might opt for annual leave because he/she is not really sick. I suggest that you first establish if the person is really sick. If so, he/she is entitled to sick leave and it should be treated accordingly. Rather explain that you will not hold it against the employee if he/she took paid sick leave.

    1. Maternity leave is effectively a suspension of an employee’s employment. In terms of Section 22 (5)A of the BCEA the employer must pay the employee the same amount for sick leave that the employee would have recieved for terndering their services on the day that the sick leave is taken. Since an employee is not being paid during maternity leave, the employee is not entitled to paid sick leave during maternity leave.

  7. We have a person who started working for us in July 2011. She already took a day family responsibility leave, and one day sick leave.
    She brought a sick note again yesterday, for two days. Do we have to pay her?

    1. During the first 6 months of employment the employee is only entitled to one day paid sick leave for every 26 days worked. If the employee takes more than this, the employer may treat it as unpaid leave.

  8. My son was in hospital for a week( actually 3 working days) my boss now insists that I take that leave as the annual leave, although I have overtime. My family responsibility leave is finish. Can I take this leave as sick leave if I give them a medical certificate stating that my son was in hospital/sick?

    1. You may request that your employer give you time off in lieu of the overtime that you have worked. Alternatively the employer can insist that you take annual leave or even unpaid leave. You will not qualify for sick leave if it is your son that is sick and not yourself.

  9. Is an employee whose salary is commission based liable to claim a salary when s/he takes Annual leave.

    1. Author

      Yes, remuneration during annual leave must be calculated with reference to the remuneration during the 13 weeks preceding the commencement of leave.

  10. If a employee applied for a days leave (Wednessday)and becomes ill before the days leave is due she is booked off for 3 days which then included the Wednessday she applied for the days leave.
    Does the days leave fall away or is it taken as a days leave

    1. Author

      The same principle should apply – as the Wednesday is not a day on which that employee would have worked (assuming that the leave application has been approved), the employee would not be entitled paid sick leave for that day.

  11. 1. If a casual worker is off sick do I have to pay her.
    2. If she is do not come on a public holiday do I pay

    1. I am assuming the person works for you for at least 24 hours per month (If it is less, the sick leave and public holiday provisions of the BCEA would not apply to her). If the person is too sick to work on a day that she would normally have worked, you would have to pay her. Likewise, if she does not work on a public holiday that would otherwise have been a normal working day for her, then she would be entitled to pay for that day.

  12. When I come to work sick but then ask to go home at 10 or 11 o’clock, must I put in sick leave for this particular day, even if I came to work for a couple of hours?

    1. The act is not very clear on this issue. Internal company policy would normally adress it. In the absence of a policy it is recommended that it should be treated as sick leave if the employee has worked less than half of his/her working day.

  13. If a permanent employee is at work until 12:00 and then goes home due to illness, must they put in a day’s leave for that day, even though they worked almost half the day?

  14. If I was on maternity leave for 4 months last year was I still entitled to a full 3 weeks leave at the end of the year?

    1. Yes you will.

      Sec 20(1) provides that an employee’s “annual leave cycle” is the period of 12 months
      – immediately following commencement of employment; or
      – the completion of that employee’s prior leave cycle.
      Sec 20 provides further that an employee is entitled to 21 (calendar) days’ leave per leave cycle.
      The section does not say that the accrual of leave is delayed or suspended by maternity leave.

  15. if an employee goes to a physiotherapist and not to their doctor for referral, can the physio write a sick note? I assumed only doctors’ sick notes are accepted.

    1. Section 23 (2) of the BCEA states the following:

      “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 and who is registered with a professional council established by an Act of Parliament”

      This will include physiotherapists.

    1. During the first six months of employment you are only entitled to 1 day paid sick leave for every 26 days worked. After six months you are entitled to your full allocation of sick leave (paid sick leave equivalent to the amount of days worked in a six week period during a three year cycle).

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