The use of sick leave for occupational injuries and diseases

Dear Reader

We get increasingly more enquiries from persons relating to the correct use of sick leave for occupational injuries and diseases.

There are two compensation systems in South Africa which are governed by two different statutes: the Compensation for Occupational Injuries and Diseases Act (COIDA) of 1993 and the Occupational Diseases in Mines and Works Act (ODMWA).

For the purpose of our newsletter I would like to focus on the correct use of sick leave related to the prescriptions of the COIDA. The main aim of the COIDA is to provide for compensation in the case of disablement caused by occupational injuries or diseases, sustained or contracted by employees in the course of their employment, or death resulting from such injuries or disease.

Normally it is the employment of the employee that causes the accident or exposes the worker to the risk of the accident. An ” accident” is defined as “an accident arising out of and in the course of an employee’s employment and resulting in a personal injury, illness or the death of the employee“.

Section 24 of the Basic Conditions of Employment Act refers to the application of “sick leave” to occupational accidents and diseases. It stipulates that sick leave do not apply to an inability to work caused by an accident or occupational disease as defined in the COID Act or the ODMWA, except in respect of any period during which no compensation is payable in terms of those Acts.

It would thus be illegal to make use of sick leave for an occupational injury or disease except where no payment is prescribed.

Section 22(2) of the COIDA refers to the areas where no payment is prescribed. The section stipulates that no periodical payments may be made in the case of temporary total disablement or temporary partial disablement that lasts for three days or less. If an employee is booked of for three days or less due to an occupational accident or disease, no periodical payment is prescribed by the COIDA.

According to the abovementioned legislation it would thus be legal to use sick leave where the worker is booked off for three days or less.

With this in mind we need to ask if it would be fair if the employer us sick leave to cover these periods of absents. What happens in cases where an employee’s sick leave is exhausted? Will it be fair to grant unpaid leave for these periods?

Unfortunately there is no clear prescription or directive relating to the matter. This creates a gray area concerning the matter.

Remember that it is normally the employment that causes the occupational accident or disease; will it be fair to deprave the employee from his or her normal sick leave benefits in cases like these?

I am of the opinion that the worker should not be worse off than before the occurrence of the occupational accident or disease. It would thus be advisable for employers to use Injury on Duty (IOD) leave or special leavewhere the worker is booked off for three days or less.

The W.Cl 4 form (first medical report in case of an injury on duty) or the W.Cl 1 (first medical report in case of an occupational disease) could be used by the employer to book the worker off.

As previously mentioned, Section 24 of the BCA stipulated that “sick leave do not apply to an inability to work caused by an accident or occupational disease“. This implies that sick leave may not be used where the worker is booked of for longer than 3 days.

Periodical payments as listed in Schedule 4 of the COID Act will be applicable in cases like these. For the sake of this article it would be important to include the following information as listed in Schedule 4.

When the employee is booked off due to an accident or occupational disease for 4 days or longer, but less than 3 months, the employer must pay the injured employee at a rate of at least 75% of his earnings, from the first day, until the employee returns to work.

If the employee is booked off due to an IOD for a period longer than 3 months, the employer only pays the injured employee at a rate of least 75% of the workers earnings, for the first 3 months. Once the first 3 month period expires, the injured employee must claim compensation from the Compensation Fund.

Employers can claim the periodical payments made to the employee (during the first three months) back from the Compensation Fund.

I trust that the above mentioned information would be helpful.

For more information please contact Tinus Boshoff at [email protected]