Section 23 of the Basic Conditions of Employment Act (“BCEA”) provides as follows:
“(1) An employer is not required to pay an employee in terms of Section 22 if the employee has been absent from work for over 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.
(2) The medical certificate must be issued and signed by a medical practitioner or any other person certified to diagnose and treat patients and registered with a professional council established by an Act of Parliament.” (our emphasis)
Who may issue a medical certificate for purposes of section 23 of the BCEA?
Persons who may issue a medical certificate for purposes of section 23 of the BCEA include:
- The term “practitioner” is defined in the “Ethical and Professional Rules of the Health Professions Council of South Africa” (“HPCSA”) as any person registered in terms of the Health Professions Act 55 of 1974. This includes practitioners such as doctors, dentists, psychiatrists and other;
- The term “practitioner” for purposes of the Allied Health Professions Act, 63 of 1982 means a person registered as an acupuncturist, ayurveda practitioner, chiropractor, homoeopath, naturopath, osteopath or phytotherapist, in terms of the Act. The Code of Ethics of the Allied Health Professions Council of South Africa states that for the purposes of section 23 of the BCEA the issuance of a medical certificate is only permissible in respect of the professions of acupuncture, Ayurveda, Chinese medicine, chiropractry, homoeopathy, naturopathy, osteopathy, phytotherapy and unani-tibb.
- In terms of the Position Statement issued by the South African Nursing Council, Professional Nurse Practitioners who possess an additional qualification in Clinical Nursing Science, Health Assessment, Treatment and Care and additional qualification in Occupational Health Nursing are deemed competent to assess, diagnose, treat and issue sick notes for a maximum of two (2) days. Nurses who do not possess these additional qualifications may only issue certificates of attendance.
An employer is entitled to reject a certificate issued and signed by someone who is not a medical practitioner or certified to diagnose and treat patients.
The second requirement is that the issuer of the medical certificate must be registered with a Professional Council.
Requirements for validity
Notably, the BCEA does not require any diagnosis to be stated on the medical certificate, only that, in the practitioner’s professional opinion, the employee was unable to work for the duration of the employee’s absence. No diagnosis may be stated on a medical certificate without the patient-employee’s informed consent.
The medical certificate must be based on the professional opinion of the medical practitioner after examining the employee and certificates which state that the patient-employee “informed” the practitioner may be rejected.
An employer is not obliged to accept a medical certificate at face value and can take steps to verify the medical certificate.
The validity of the medical certificate should also be checked against the requirements prescribed by the Rules of the Medical and Dental Professions Board of the HPCSA. If the medical certificate is invalid, it may be rejected and the employee is not entitled to paid sick leave.
Employers who suspect fraud on the side of the medical practitioner must report the practitioner to the HPCSA. An employee should not be disciplined for consulting with such practitioner, unless there is evidence which establishes that the employee was complicit in the fraud or the submission of the medical certificate constitutes misconduct on the part of the employee.