Socio-economic circumstances in South Africa deny the greater population access to private medical practitioners. The result is that people are reliant on clinics for medical attention where the employee is provided with a medical certificate which is, more often than not, signed by the clinic nurse. This poses an exceedingly frequent question amongst employers i.e. what constitutes a valid medical certificate for purposes of sick leave?
In terms of section 23(1) of the Basic Conditions of Employment Act, an employer may grant paid sick leave where an employee has been absent for more than two (2) consecutive days or on more than two occasions in an eight (8) week period 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.
Subsequently, it is an inherent requirement that the medical practitioner indicates the following on the medical certificate:
1) That the employee was unable to perform his/her duties as a result of sickness or injury; and
2) That his diagnosis is based on his professional opinion.
Section 23(2) of the Basic Conditions of Employment Act further states that a valid medical certificate must:
1) Be issued and signed by a medical practitioner; or
2) any other person who is certified to diagnose and treat patients; and
3) 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:
1) A doctor in possession of an MBChB degree who is registered with the Health Professions Council of South Africa;
2) A dentist who is registered with the Health Professions Council of South Africa;
3) 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;
4) 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.
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.
In summary, 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 section 22 of the Basic Conditions of Employment Act.
REGIONAL MANAGER OF CEO IN THE FREE STATE
ABOUT JAUNDRÉ KRUGER
J A KRUGER, LLB (UFS), COMPLETED HIS ARTICLES AT SYMINGTON & DE KOK ATTORNEYS IN BLOEMFONTEIN, ADMITTED ATTORNEY OF THE HIGH COURT OF SOUTH AFRICA, SIX YEARS EXPERIENCE IN THE FIELD OF LABOUR LAW.