Most employers experience absenteeism by their employees due to being sick or allegedly sick. In many instances employees abuse their sick leave entitlement or “use” it because they believe it is their right to do so, and consequently they abuse sick leave, whether sick or not.
However, employees are not necessarily the only ones to blame for the abuse of sick leave.
It is a known fact that some doctors earn an easy fee by issuing medical certificates without examining the employee. Most employers assume that they simply have to accept medical certificates at face value.
A private arbitration some time ago, offers a good illustration of the extent of collusion between employees and some medical practitioners / doctors. It involved a certain doctor in Cape Town who was renowned for the volume of certificates he issued for employees of a certain parastatal. When the employer could no longer contain its suspicions, it set a trap by sending a trusted employee to report sick. After some enquiries, the employee managed to locate the doctor’s rooms (a prefabricated building situated next to ablution facilities on a platform at a major rail junction just outside Cape Town). He also quickly established the doctor’s modus operandi, which was this: upon entering the consulting room ‘reception’ patients would be asked by the receptionist whether they came to see the doctor or whether they required medical certificates. Depending on the response, ‘patients’ would be seated in different parts of the reception area. Those in need of treatment would be seated while the rest would queue to receive their medical certificates – pre-signed by the doctor – from the receptionist who would merely note the ‘patient’s’ details and the period of absence required.
In previous articles we indicated that medical certificates must comply with a number of requirements, e.g. it must be an original certificate, issued by a registered practitioner whose full details (including practice number) must appear on the document. It must also be unaltered, legible and state the date and time of the consultation. According to the rules of the Health Professions Council of SA (HPCSA), the practitioner must indicate if the certificate is being issued as a result of personal observations by the practitioner during an examination or as a result of information which has been received from the patient and which is based on acceptable medical grounds. The italicised section is important: the doctor cannot issue the certificate purely on the basis of the say-so of the employee. The certificate must furthermore cover the whole period of absence.
What can one do in the event of medical practitioners colluding with employees? Can the certificate (‘the doctor’s word’) be challenged? Employers have four forms of support available for taking action. First, and obviously, if it has sufficient proof of abuse it can take disciplinary action against the employee, including possible dismissal on the basis of dishonesty. Second, to qualify for sick leave, an employee must be ‘unable to work’ for the duration of the absence.
Third, the Labour Court has decided that a medical certificate, like any other document, can be challenged on the basis that it is either not genuine (e.g. it doesn’t meet the requirements above or has been tampered with) or that it does not provide sufficient proof that the employee is genuinely unable to work. Employers therefore may insist on better proof of the reasons for absence if they have reason to doubt the veracity of a certificate. The simplest is to ask the employee to obtain further proof from the doctor concerned, or for an updated certificate that specifies that the employee had been examined and was found to be unable to work for the entire period of absence.
Finally, registered medical practitioners are subject to the discipline of the HPCSA if they behave contrary to its ethical rules (see Ethical Rules of Conduct for Practitioners under the Health Professions Act, 1974, published in Government Gazette No 29079 04 Aug 06, R 717). Care should be taken not to refer just any suspicion of collusion between doctor and patient to the HPCSA.
Employers should at least have reasonable grounds for suspecting as much before a complaint is lodged. We would advise that an employer first provide the doctor concerned with an opportunity to clarify your concerns before lodging a complaint. If the Council finds the doctor guilty, he/she faces disciplinary action and even de-registration. Given the potential seriousness of the consequences, we would reiterate that employers should only refer a complaint if there is merit in it. Unsubstantiated claims that tarnish the reputation and good name of the doctor might boomerang and end with the employer as a defendant in a claim for defamation.
Because of medical privilege, the doctor can only state the diagnosis if the patient gives permission. However, to limit the chances of abuse and collusion we would advise that employers do the following. Firstly, inform employees of their rights under the Basic Conditions Of Employment Act’s ’s sick leave provisions, i.e. that they must be unable to work and that employers reserve the right to demand reasonable proof of this if necessary. Secondly, make employees aware of the requirements for a valid medical certificate. Thirdly, conduct return-to-work interviews with employees returning from sick leave as a “visible policing” mechanism. Finally, if an employee shows a pattern of absence, or complain of one or other health problem, the employer should write to the employee’s doctor and ask the following (the doctor cannot ignore these as it might affect the health of the patient): (a) does the employee suffer from a condition (e.g. uncontrolled hypertension, uncontrolled diabetes, food handlers with infection, uncontrolled epilepsy or a non-work related injury) that might affect his or her ability to work. If so, the employer might have to commence incapacity procedures; or (b) is there a chance that the work or work environment might affect the employee’s health (e.g. sedative treatment, or treatment for allergy, colds, flu or pain; psychiatric issues, the high risk nature of the work, etc).
Sick leave abuse cost the employers and economy billions of rands annually. The fact that some medical practitioners collude with employees makes them accomplices to this. While there are options open for taking doctors who are guilty of this to task, prevention is the best option – and that entails putting in place effective sick leave abuse policies and prevention systems.
