EOHCB: Sick Leave & Valid Medical Certificate
What constitutes a valid medical certificate for purposes of sick leave?
In terms of the rules of the Sick Pay Fund of the National Bargaining Council for Hairdressing, Cosmetology, Skincare, and Beauty Industry, an employer may grant paid sick leave where an employee has been absent for one (1) or more consecutive day(s) if the employee produces 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.
It is an inherent requirement that the medical practitioner indicates the following on the medical certificate:
That the employee was unable to perform his/her duties as a result of sickness or injury; and
That his diagnosis is based on his professional opinion.
Section 23(2) of the Basic Conditions of Employment Act states that a valid 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.
Therefore, it is necessary to establish whether the person who issued the medical certificate is either a medical practitioner in terms of the Act, a person certified to diagnose and treat patients, or a person registered with a professional council.
The aforementioned requirement at this stage is still extremely vague to most employers. To clarify the issue, one has to look as to who the Act describes as a medical practitioner.
A medical practitioner, under the definitions of the Basic Conditions of Employment Act, means a person entitled to practise as a medical practitioner in terms of section 17 of the Medical, Dental and Supplementary Health Services Act 1974 (Act No. 56 1974), better known as the Health Professions Act.
The following medical practitioners may issue medical certificates under the Act:
A doctor in possession of an MBChB degree who is registered with the Health Professions Council of South Africa;
A dentist who is registered with the Health Professions Council of South Africa;
A psychologist in possession of a master’s degree in research, counselling or clinical psychology who is registered with the Health Professions Council of South Africa;
Any other medical practitioner registered with the Health Professions Council of South Africa.
It is clear from the aforementioned that a doctor, a dentist and a psychologist qualify as a medical practitioner in terms of legislation, however, the door is left wide open for any other medical practitioners who are registered with the Health Professions Council of South Africa such as registered Professional Nurses and Traditional Healers.
A Professional Nurse who holds an additional qualification in Clinical Nursing Science, Health Assessment, Treatment and Care and is registered as such by the South African Nursing Council is capable of providing direct patient case for all types of illnesses and ailments, offering the first level of nursing care that patients receive and is competent to independently render appropriate and skilled primary care services. Such a nurse is competent to assess, diagnose, treat and issue sick notes to patients.
On 30 April 2014, then President Jacob Zuma signed the Traditional Health Practitioners Act which means that traditional healers must register with the Traditional Health Practitioners Council of South Africa which will enable a registered traditional healer to provide an employee who is absent from work due to incapacity with a valid and recognised medical certificate which an employer must accept.
Section 17(2) of the Health Professions Act provides that any person desirable to register as a medical practitioner in terms of the Act shall apply to the registrar of the council. Section 17(3) of the Health Professions Act grants the registrar authority, upon receipt of the applicant’s qualifications and other documents, to issue the applicant a registration certificate authorising the applicant to practice the profession in which he/she applied for, if the registrar is satisfied that the applicant has satisfied the requirements.
Employers often find employees who have been absent for a certain period, who upon their return provide a note from the clinic, which merely states that the employee visited the clinic on a specific day. As mentioned earlier, employers are unsure as to whether these certificates are valid for purposes of sick leave.
The first step to assess the validity of the medical certificate is to establish whether the person who issued or signed the certificate is a medical practitioner or not. As discussed above, such a person would be a doctor, a dentist or a psychologist. If the certificate was issued by a person other than the aforementioned, it is imperative that the certificate indicates that the person is indeed registered as a medical practitioner in terms of the Health Professions Act. The medical certificate should also indicate such a person’s practice number.
The second step to verify the validity of the medical certificate is to establish whether the certificate indicates that the employee was unable to perform his/her duties as a result of the sickness or injury. The diagnosis of the medical practitioner should, as mentioned earlier, be based on his professional opinion and not on the information provided by the patient/employee.
Medical certificates that comply with the abovementioned requirements will only then be deemed valid and employers may then grant paid sick leave as contemplated in the rules of the Sick Pay Fund.