When an employee hands in a sick note, how much can an employer really ask about their medical condition? South African law protects workers’ privacy—but where do the boundaries lie? Let’s break down the rules under the Basic Conditions of Employment Act (BCEA) and when an employer can—and can’t—ask for details
Employee sick leave is granted as per s22 of the Basic Conditions of Employment Act 1997 (BCEA) and furnishing proof of said sick leave is dictated by s23 of the BCEA. Each Employee gets 6 (six) weeks’ worth of sick leave over a 36 (thirty-six) month cycle. A sick note is to be handed in when an employee is absent from work for more than two consecutive days or more than two occasions in an eight-week period.
However, there are times when a patient i.e. the Employee, asks a doctor to place medical condition on a medical certificate, thereby keeping the medical condition and treatment of the patient private.
Can an Employer ask an Employee about their medical condition or what occurred at the doctor?
In short. No.
The reason for this is the fact that each South African Citizen has a right to privacy and specifically medical privacy. An Employer cannot question an Employee about his/her medical diagnosis but can question, the legitimacy of the sick note or contact the doctor in order to verify a sick note.
However, should an Employee’s medical condition directly affect the Company and her/his ability to conduct their job and perform their job tasks, then it would be prevalent for the Company to made aware of the Employee’s debilitating medical condition and, whether the Employee is able to continue working for the Company.
Examples of such an illness could be in the way of a terminal illness and/or a chronic illness. Things such as modifying the job position to accommodate the Employee are factors that need to be taken into consideration during disclosure.
To verify if an Employee is fit and able to do their job can be by way of a Company paid for medical exam or a report from the Employee’s doctor indicating as to whether the Employee can continue with their job position, given their medical condition.
In conclusion please be aware there are limits to how much you can infringe upon an Employee’s privacy.
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