Question: An employee fell ill and was unable to perform his duties as his condition deteriorated day by day. The employer took him to the doctor, who only provided a sick note. The employee exhausted his sick leave during this period, and has subsequently been off sick for several months. The employer had to appoint someone in the employee’s place for operational reasons. What happens to the sick employee now?

An ill health incapacity investigation and counselling process could / should have been finalised before this point, probably resulting in the dismissal of the employee. However, if the employer wants to cleanly conclude the situation at this stage, it needs to get a doctor to provide a full report and prognosis in terms of the employee’s ability to perform his work and the chances of him getting well again within a reasonable time – to the extent that he will be able to perform as required, or to be appointed to any other viable alternative position, if there are any.

It is recommended that the employer nominate and pay for a doctor to examine the employee as a second opinion and especially if his own doctor is not cooperating – the second doctor can always consult with the employee’s own doctor on the medical history etc. The employee has to be informed of the purpose of the examination, the information the employer requires and the reasons for this process.

The doctor(s) need not give the employer any private medical information in the report if the employee does not consent to that. However, the employer must brief the doctor fully (preferably in writing) about the nature of the employee’s job and the physical, emotional and psychological demands of the job; and be informed that they need not disclose the details of the illness, but provide an operational prognosis based on their expert opinion (a sample letter is available from Griessel Consulting). The doctor should give the employer an opinion on the employee’s ability to do the job – based on whatever disclosed or undisclosed medical condition he has – and whether full performance can be attained and maintained within a reasonable time frame. This is operational information and not disclosure of private medical details.

If there is not going to be full performance within a reasonable time (also taking into consideration the time that the employee has already been off) and no viable alternatives to consider, the employer could schedule a formal meeting with the employee (who can be assisted by a co-worker) to discuss the medical report and to consider termination on the basis of incapacity.

If the employee refuses to cooperate with a medical examination, he should be informed that the onus is on him to provide reasons why he should not be dismissed for ill health, and if he cannot / will not cooperate with this process in order to provide the necessary information for the viability of the employment relationship going forward, the employer will have no choice but to dismiss him for ill health incapacity.

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