Understanding Sick Leave Policy

#SickLeave #MedicalPrivacy #EmploymentLaw #SouthAfrica #POPIA #LabourLaw

Key Points

1. Right to medical privacy

   • Every South African has a constitutional right to privacy, which includes the confidentiality of medical information. blog.seesa.co.za+1

   • Employers must respect this and avoid demanding unnecessary medical details from employees on sick leave.

2. Sick-leave entitlements and employer proof demands

   • Under the Basic Conditions of Employment Act (BCEA), employees are entitled to paid sick leave during a cycle (typically six weeks’ worth over 36 months) and employers may require a medical certificate if absence exceeds two consecutive days or occurs more than twice in an eight-week period. Department of Labour+2Labour Guide+2

   • The article emphasises that for shorter absences an employer cannot automatically demand broad medical information; the focus is on proof of incapacity, not full medical history.

3. What employers may and may not request

   • Employers may ask for a certificate stating the employee was unfit to work for the stated period.

   • However, they should not demand full medical diagnosis, treatment details or medical records beyond what is reasonably required. The article underscores that employee consent or specific lawful basis is needed for processing sensitive medical data. blog.seesa.co.za+1

   • The processing of health-data is governed by the Protection of Personal Information Act (POPIA) and other relevant rights of privacy. LegalWise

4. Practical HR risk areas highlighted

   • If an employer collects excessive medical information, uses it improperly, or fails to secure it, there is a risk of breaching privacy laws.

   • Employers need clear policies on sick leave, what information may be requested, how medical certificates will be treated, and how medical data is stored and used.

   • Transparency and consistent treatment are key to avoiding discrimination or unfair treatment claims.

5. Tips and good practice

   • Request a medical certificate only when legally permissible (e.g., after two days’ absence or repeated absences).

   • Limit information to what is needed: “unfit for duty” for a defined period, not full diagnosis.

   • Ensure employee consent where required, or rely on lawful basis for processing medical information under POPIA.

   • Secure the medical data properly, restrict access and clearly define retention periods.

   • Keep sick‐leave policies and procedures documented and communicated, including how medical certificates are handled and how absenteeism will be managed.

Why This Matters

For employers in South Africa, there's a delicate balance between managing absenteeism and respecting employees’ rights to medical privacy. Mis-handling of medical information can lead to legal exposure under labour law and privacy regulation. For employees, it’s important to understand that their sickness entitlements exist, and they don't automatically have to divulge detailed medical history when taking sick leave.