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Sick leave: fact vs fiction

Sheena Mayers Labour management advisor

Sick leave: fact vs fiction

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Every day the Barbados Employers’ Confederation receives at least one query on leave entitlements. No other type of leave has as many grey areas as sick leave and the absence of clarity in legislation and sometimes the non-existence of organisational policies, and the influx of practices from other countries have resulted in various pieces of misinformation. Can I travel for a medical procedure while on sick leave? Does the law provide for six uncertified sick days? Can I be terminated while on sick leave? In this article I will seek to debunk some common myths around sick leave.

• I am entitled to sick leave by law. Fact and Fiction.

The Employment Rights Act 2012, states that it is unfair to dismiss an employee who is on certified sick leave for a period of less than 12 consecutive months or 12 months in a period of 24 consecutive months. This provision therefore means that an employee can effectively proceed on certified sick leave within these time limits and not be terminated for absence away from work. Of note is that no provision exists in law for uncertified sick leave, that is, calling in sick. Therefore, an employer is not legally required to permit employees to call to say they are unavailable for work. However, most employers will recognise that employees, on occasion, will be unavailable for work due to illness and make a provision for such, most often making six uncertified days available for use, but this number can vary. Additionally, there is no legal requirement for an employer to pay an employee who is away for work due to illness. Issues of payment for sickness must be addressed in either contracts of employment, collective agreements or employee handbooks.

• If a public holiday falls within my sick leave/maternity leave the leave is extended by the day. Fiction.

Sick leave and maternity leave are recorded by calendar days. On the sick leave certificate the doctor will indicate when the employee should be fit to resume work and that is the date the employee should return, regardless of whether public holidays fall within the period. Likewise maternity leave is granted for 12 continuous weeks. Calendar weeks are counted inclusive of public holidays and therefore the leave is not extended, should a public holiday fall during the period.

• I can proceed on sick leave to travel overseas for a medical procedure for which my doctor has referred me. Fact.

To proceed on sick leave an employee submits certification from a medical practitioner stating that they are unable to work for a specified period of time. A legitimate medical reason for an employee to be absent from work is referral for a medical procedure overseas. In the National Insurance And Social Security Guide To Benefits it is clearly stated that a sickness benefit is payable where the person has gone abroad temporarily for the purpose of receiving medical treatment for an illness which commenced before the person left Barbados.

• I am on vacation and now that I am sick my vacation will stop to allow me to proceed on sick leave. Fiction.

There is no legal requirement that vacation leave be interrupted to allow an employee to proceed on sick leave. The Holiday With Pay Act prescribes that employees proceeding on vacation leave should receive payment prior to proceeding on leave. Where an employee has already been paid for time off, the employer cannot be forced to treat the vacation leave as an alternative type of leave. To further cement this point, when an employee signs and submits a NIS Claim for Sickness/Injury Benefit form, they witness to the fact that “I will not claim or receive benefit in respect of a period which I was . . . receiving vacation pay.”

One caveat is that where the employee falls sick immediately prior to vacation, or even on the first day of vacation, then the employer should cancel the vacation leave and allow the employee to proceed on sick leave. The vacation leave can then be rescheduled.

• It is unlawful to proceed on vacation immediately after sick leave. Fiction.

The Holiday with Pay Act does not prohibit vacation leave from immediately following sick leave. However, employers may have a company policy of requiring employees to return to work after sick leave before proceeding on vacation leave. Such policies are legal as the Holiday With Pay Act clearly gives employers the right to schedule vacation within specific guidelines. This means that while an employee may request vacation leave, the employer has the right to either deny or approve the request.

There is no overarching legislation on sick leave in Barbados; therefore employees should reference their contracts of employment, employee handbooks and/or collective agreements when they have questions. Additionally, employees are encouraged to speak to their managers or human resource practitioners if they need further clarity on situations that may arise.