ambulance

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.

sick

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.

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for over 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.


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Comments

  1. D.O.ONGOYA says:

    What is the legal obligation of the employee to the employer while on leave/time off, etc.
    Can an employee be punished if for instance he fails to show up on request by the employer while on leave.
    What about receiving employer’s phone calls regarding an official matter requiring the attention of the employee on leave?

    1. Anne Babu says:

      The law does not expressly provide for this however, an employee should comply and cooperate with the employer’s REASONABLE requests especially because failure to do so may jeopardize the employer one way or another.
      In regards to recalling an employee from leave, this is also not expressly provided in law however, all leave matters, including recalls, should be carried out in consultation with the employee and with agreement as to when the leave balance may be taken (ILO Holidays with Pay Convention).

  2. Salome says:

    What are the provisions for issuing a notice of termination of employment (due to retrenchment) when an employee is on leave e.g maternity leave? Can the employee decline to report to their work station when asked so by the employer so that he can be issued with the termination Letter? How long should the notice period be in such circumstances.

    1. Anne Babu says:

      The first redundancy notice is for 30 days; it’s sent to the employee and copied to the labour officer and the union. It’s a notice of intent to declare the employee redundant on expiry of the 30 days.
      At the end o the 30 days, the employee is issued with a termination letter. The notice of termination is as per the contract or if there is no provision in the contract, then 30 days (for an employee who is paid monthly).
      The employee should comply if the request is reasonable ie bearing in mind their condition and location at the time of the request. The letter can be hand delivered or emailed, as long as you can prove that the employee is aware of it and it’s contents.
      This post will shed more light – http://kenyaemploymentlaw.com//2015/11/14/what-does-the-law-say-about-redundancies/

  3. D.O.ONGOYA says:

    Dear Anne,
    Thanks for your regular advise.

    When does the statutory sick leave apply?
    Is it when the employee is off work on a continuous basis or the seven days can be reduced prorata?
    My employer gives 45 days sick leave but the practice is that the days are reduced every time an employee takes a sick off.
    For instance: If an employee takes 2 days sick off, then he/she will remain with 43 days in the calendar year.
    Is this the right application of the law?

    1. Anne Babu says:

      Yes, that is the correct application. The sick off days should be deducted as long as the employee produces a medical certificate.

  4. Alina says:

    Dear, Anne.
    Please, explain me – if employer ensures that employees are registered under the National Hospital Insurance Fund (NHIF) and remits contributions – can employer refuse from corporate medical insurance?
    Is Service supported NHIF enough or employer must provide medicine when. for ex. I caught flue?

    Best regards

    1. Anne Babu says:

      If the workers are registered for NHIF and contributions are remitted, the employer has no further obligation to provide medicine or medical insurance.

      1. Caroline says:

        Hallo Anne, Thank you for your insightful articles. Had a discussion with a lawyer about the entitlement of sick leave when one is on annual leave. His argument was (which is also the law), the entitlement to sick leave is further subject to production by the employee of a certificate of incapacity to work. Meaning the employee is not at work by the time he or she fell sick.The purpose of sick leave is to allow the employee who is at work to stay away as a statutory right. Therefore the remaining annual leave days should not be taken as sick offs. Right?

        1. Anne Babu says:

          Correct

          1. kennedy obiewa says:

            Hi Anne,

            Kindly clarify this further for me. Hypothetically, my employee has 10 days left on his annual leave. He is given 5 days sick off while still on leave. Do i need to add 5 days to his annual leave to cater for the sick leave?

          2. Anne Babu says:

            The annual leave ends when the sick leave starts, meaning, the annual leave days are not utilised until the sick leave ends.

  5. George Huma says:

    Good information , would like to be kept informed especially on emerging issues

    1. Anne Babu says:

      Please subscribe to the blog on the home page.

  6. E. Wanjiru Muchemi says:

    Hi Ann,

    what happen if an employer in the offer letter promises a medical cover which he does not practically offer to employees? what especially if the employees continue incurring medical bill and the promise to a medical cover remain that – a promise in the offer letter? can an employee claim ?

    1. Anne Babu says:

      It is a breach of contract not to provide cover if you have stated clearly that it will be provided. Orders can be obtained to compel the employer to provide the cover.

      1. M MUCHEMI says:

        thanks for answering this_
        what happen if an employer in the offer letter promises a medical cover which he does not practically offer to employees? what especially if the employees continue incurring medical bill and the promise to a medical cover remain that – a promise in the offer letter? can an employee claim ?

        NOW On the same note , one of my colleagues contract has been terminated. can he claim refund or compensation since no medical cover was issued during his tenure. does he got rights? mark you it is written in the contact that a medical cover will be offered.

        1. Anne Babu says:

          Yes, they can claim.

      2. Wanjirwa Kenya says:

        i was employed on 2/06/2017. i have not received any communication on my probation which in the offer letter was indicated to be 3 months. I assumed after three months i was Automatically confirmed since no communication came , and i took my leave days in August and Sept 2017. ( the condition in the company is that you can’t take your leave days while still on probation. this was a clear confirmation that i had been confirmed.) My employer has never complained about my work till last week when he (the director) called me and said i should expect a warning letter since i have not met his expectation. Today 13/12/2017 i have been handed over a letter dated or backdated 4th Dec 2017.
        sub :- warning letter for poor work performance. .
        in the letter it state that the management has decided to extend my probation period up to 31st January 2018 , AND that if i wont have improved it will led to termination of my employment.
        ANN is this the right procedure. is it right for my employer to keep me for seven months without informing me that i have been probation for seven months? i feel cheated. and i see this as a move to unfairly dismiss me anytime. do i accept the letter or can i write an email/ letter rejecting the probation letter? if i assumed and kept silent what are the pro and cons. Thanks Dear Ann.

        1. Anne Babu says:

          Communication regarding the outcome of probation should be given before the end of probation otherwise the employee is deemed confirmed. This means that your employer is wrong and is most likely planning on letting you go at the end of this month. Issues regarding performance should be clearly articulated and you should be given a reasonable time to improve. It is best to indicate in writing your objection to the warning and the extension of probation.

  7. E. Wanjiru Muchemi says:

    My employer has this tendency- I work in an engineering company where by it is male dominated. Any time my employer hear a discussion in the work station he sermon me to his office saying i never work and my work has been basically chit chatting. i basically don’t talk in the office cause if i do , he will sermon and make noise. He has literally complained about me going for lunch with my workmates. He never question my colleagues if he ever find them talking. He bullies me saying when i go out with them am going to talk to them on how to bring the company down. When he find or hear us talk he has never called MY MALE COLLEAGUES to question them. is this not discrimination? i need to know Ann

    1. Anne Babu says:

      To succeed in a claim for discrimination, you have to have clear evidence that you are being treated differently from your male colleagues. If you have such clear evidence then you have a case.

  8. Juliet says:

    Hi Anne, thanks for this insightful post. Tagging on it since my request is related. What is the correct way to account for sick leave, is it consecutive/ calendar days i.e. including weekends and public holidays especially when there are prolonged sick leave periods or should we only count the working days therein?
    TIA for your response.

    1. Anne Babu says:

      Only working days count for purposes of counting an employee’s sick leave entitlement. The days need not be taken consecutively.

  9. Kuloba says:

    Dear Anne,

    I really appreciate your informative page on HR issues, thank you very much Anne.

    We provide annual contracts to our staff (January to December) and renew each year based on need for the positions.

    Some positions will not be needed next year and therefore we do not intend to renew the contracts for these staff. Their contracts will not be renewed.

    Technically, are these positions redundant? If so, are we mandated to provide notice to the labour office even though we are not terminating their contracts? Since we are not terminating their contracts, do we need to give them any written notice? Or should we just explain to the staff that we will not renew their contracts?

    Thank you for your feedback.

    Kuloba.

    1. Anne Babu says:

      Thanks for the compliments. That is not a redundancy, the contracts are lapsing by virtue of the end of their term – that is the greatest benefit of fixed term contracts, that is, the ease of exit.

  10. Eunice Muriuki says:

    Hello Anne

    I just resumed work from a work rated trip that lasted 9days. I was entitled to 7days sick leave as I was discharged from hospital on 30th Jan and travelled 2nd Feb, is the leave still applicable?

    1. Anne Babu says:

      Hi Eunice, I think you need to get another sick sheet from the doctor since the leave is supposed to be taken after being discharged from hospital but you travelled which suggests that you are well enough to work.

  11. Paulyne Chan says:

    Hi, I appreciate how you tackle issues employment, kindly help, I have been working with a security firm for the past six years, and for the past two years, I have developed a condition in my legs that have become very unbearably painful, maybe as a result of wearing boots the whole day, I really want out so that I can rest and probably heal but I don’t know how to go about it. Please advise.

    1. Anne Babu says:

      Hi, if you think the illness is work related, you should lodge a claim immediately with the Director of Occupational Health and Safety so that you can be examined and the matter can be confirmed and you can be compensated if there is medical evidence that the matter is work related. You can then opt to resign.

  12. Carolyn says:

    Hi Anne
    What is the legal recourse for an employer where one of its employees is an alcoholic and is therefore perpetually absent from work though resumes every so often. He was taken through a disciplinary process and after appeal he was given a second chance noting that alcoholism is a disease.

    Can the alcoholism in this case be categorized as “sickness” by the employer and thus “retire” the employee on that basis (even though he is still relatively young). Or can the employer now go ahead and dismiss the employee for gross misconduct. This is a dilemma as the young man is quite brilliant when sober and the employer has already sent him to rehab several times with no success.

    Your advice here is greatly appreciated.

    1. Anne Babu says:

      Being drunk to the level of being unable to work is a ground for summary dismissal moreso where the employee has not changed afrer rehab and support from the employer.

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