Your legal rights
When a Nasty Virus Lasts a Lot Longer than your Sick Leave
Temporary incapacity leave may come to your rescue.
Life can be unpredictable. One day you are in perfect health, and the next day you find yourself unable to work due to an illness or injury. Our labour laws recognise that employees may need extended time off from work to recover from an injury or illness, which is where temporary incapacity leave comes in. But what exactly does this mean and how does it work under South African law?
What is temporary incapacity leave?
Generally, the Basic Conditions of Employment Act (“BCEA”) provides that an employee is entitled to 30 working days of normal sick leave in a sick leave cycle of three years. However, it is sometimes necessary to take more than the allocated sick leave due to circumstances like a serious medical condition.
Temporary incapacity leave is additional sick leave granted to employees who have exhausted their normal sick leave and who, according to their treating medical practitioner, are still unable to work. Temporary incapacity refers to a workplace issue that may temporarily prevent a person from performing their work duties due to ill health, injury, or poor performance.
Unlike standard sick leave, which is part of an employee's benefits, temporary incapacity leave is not an automatic entitlement. It must be applied for and approved at the employer's discretion based on medical evidence and operational requirements. Factors that may be considered before the temporary incapacity may be approved include, the type of illness or injury, whether alternative reasonable arrangements can be made in order for the employee to continue working, the time needed for recovery, whether the business can continue operating in the absence of the employee and so on. When employers consider the application, they are required by law to conduct an investigation into the nature and extent of an employee's incapacity.
This type of leave can be beneficial for employees who suffer from serious illnesses, prolonged recovery periods after surgery, or injuries that temporarily prevent them from performing their duties.
Who can apply for temporary incapacity leave?
Employees who are incapacitated and unable to work due to an injury or illness that meet the following requirements:
> Valid medical reason: The condition must be serious enough to prevent the employee from working and a registered medical practitioner would need to confirm this.
> Medical reports: Employees must submit medical reports detailing the nature and expected duration of the illness or injury.
> Application to the employer: The application should be made as soon as possible by following the employer's internal procedures. This means that as soon as an employee finds out that they may have a medical condition that may prevent them from doing their job, they need to inform their employer.
> Employer review: The employer may refer the application to a medical practitioner or occupational health specialist to verify the incapacity.
What laws govern temporary incapacity leave and how to apply for it?
In South Africa, our labour laws sometimes slightly differ depending on whether an employee works in the public (government) or private sector. Employees working in the public sector are governed by the same laws as employees working in the private sector, such as the Labour Relations Act and the BCEA, with the addition of the Public Service Act.
Employees can apply for temporary incapacity leave by approaching their Human Resource Department to submit their application for temporary incapacity leave. The application, investigation and determination (approval or rejection) processes must be in line with the directives and procedure policies adopted by the company or governmental department.
It must be noted that there may be additional ways for private sector employees to obtain additional leave that is based on:
> their employment contracts;
> a collective agreement between employer and employees; and/or
> the company policies or discretionary benefits provided by the employer.
If an employee in the private sector becomes temporarily incapacitated after exhausting sick leave, they may apply for financial relief through the Compensation for Occupational Injuries and Diseases Act, if the incapacity is due to a work-related injury or illness. Alternatively, employees may be eligible for the Temporary Disability Benefit from the Unemployment Insurance Fund (“UIF”).
What happens after applying?
Once the application is submitted, the employer will assess and investigate the application together with the medical evidence that was submitted to determine whether to grant the leave or not. Employers or companies may consider the impact that the leave may have on the business operations.
If the application is approved, the employee may be granted additional fully paid, partially paid, or unpaid leave. This will depend on the employer's policies or discretion. If declined, the employee may need to take unpaid leave, use annual leave, or apply for disability benefits through UIF or other relevant schemes. Alternatively, the employee may have a right to appeal the decision depending on the company or departmental policies.
Conclusion
Temporary incapacity leave is a critical safety net for South African employees facing extended illness or injury. Notably, temporary incapacity leave is not a right, but a privilege that must be applied for and approved based on medical and operational grounds. If you find yourself in need of extended leave, ensure you understand your employer's policies, submit medical reports timeously, and explore alternative benefits if necessary.
Did you know…Private and public sector employees have different guidelines for temporary incapacity leave.