Sick leave & Medical Attention under the Employment Act, 2007
6 years ago
Eric’s bucket list leads to a tragic incident…
Top on Eric’s bucket list during his annual leave is deep sea diving. He has worked hard and has been rewarded with a decent bonus; it is now time for a much needed and deserved break. After sending his last official email, he sets his ‘out of office’ reply and off he goes.
One week later Eric’s employer receives a phone call from Eric’s wife; Eric is in a coma. He was deep sea diving when his equipment malfunctioned. He inhaled water, suffered asphyxia which caused laryngospasm and suffocation which in turn caused cerebral hypoxia (inadequacy of oxygen reaching the body’s tissues).
Extended sick leave
1 month goes by with no recognizable recovery by Eric. His contractual sick leave entitlement is the statutory minimum, that is, seven days on full pay and seven days on half pay. Though he has maxed his sick leave entitlement, in light of the circumstances, the company extends the sick leave period for another two months.
At the end of the extended sick leave period, Eric’s wife informs the company that his doctors have said, with some finality, that Eric will not recover; he is in a permanent vegetative state. The company’s Board considers the matter and unanimously decides, albeit with sadness, to terminate Eric’s contract on grounds of physical incapacity.
As at the date of termination, Eric had not only maxed his contractual sick leave entitlement but he had also maxed his insurance cover by two million shillings. Eric’s family made a plea to the company to assist in offsetting the medical bill.
What does the law say?
Section 34(1) of the Employment Act, 2007 places an obligation on an employer to ‘ensure the provision of sufficient and of proper medicine for his employees during illness and if possible, medical attendance during serious illness’.
This obligation does not apply where the employees can access medical treatment free of charge from the Government or under any insurance scheme established under any written law.
Since Eric was able to access medical treatment free of charge under the company’s group medical cover, Section 34(1) does not apply in this case and if it did, because Eric’s illness can be classified as “serious”, under Section 34(1), the company would only be bound to do that which “is possible” to ensure that Eric receives medical attendance. This, presumably, is in recognition of the high cost of medical treatment for serious illnesses.
If an employee maxes the medical cover limit, the burden of paying any additional bills lies with the employee, not the employer.
In this case, therefore, the company was not bound to make any contribution towards the bills, though it still did, ex gratia.
For Section 34(1) not to apply on the grounds that the employee can access medical treatment free of charge from the Government, our Courts have held that the employer should ensure that employees are registered under the National Hospital Insurance Fund (NHIF) and that the monthly contributions are remitted so that the employees are able to access medical treatment under the NHIF scheme.
The Courts have further held that if the employees are not registered or if the monthly contributions are not remitted, then the medical bills fall on the lap of the employer.
Does the annual leave convert to sick leave?
In computing the payment to be made to Eric in respect of accrued leave, it was noted that Eric’s accident occurred 15 days prior to the end of his annual leave. The company did not consider the 15 days as sick leave but rather considered them as annual leave days.
When an employee falls ill while on annual leave, the obligation is on the employee to notify his employer as soon as is reasonably practical that he has fallen ill and to apply for sick leave.
Under Section 31 of the Employment Act, the entitlement to sick leave is further subject to production by the employee of a certificate of incapacity to work signed by a duly qualified medical practitioner or a person acting on the practitioner’s behalf.
Our Courts have held that whatever the circumstance and the need for medical attention, the duty rests on an employee to let their employer know of their condition at their earliest opportunity and to ensure that the necessary approvals/permission or consent is granted once such an eventuality arises. The employee should not assume that the employer knows what is happening.
Eric’s wife notified the company of his condition almost immediately it occurred and she presented requisite medical certificates. It follows therefore that the 15 days before the end of his scheduled annual leave should be taken as sick leave, not as annual leave.
Good things await
As I conclude, it is worth mentioning that there is a proposal contained in the Employment Act (Amendment) Bill, 2015 to increase the minimum sick leave entitlement from seven days on full pay and seven days’ on half pay to thirty days on full pay and fifteen days on half pay. This, needless to say, is welcome.
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