Most of us are familiar with that one person in the office who is always conveniently on sick leave just before or after a public holiday or long weekend. However, the phrase “I’m sick of working” has taken on a whole new meaning as a recent survey revealed that approximately one in four employees have feigned illness in order to apply for sick leave . Another 25% of employees polled stated they were willing to go the extra mile of purchasing a fake medical certificate to escape work.
THE LAW ON SICK LEAVE
The main body of legislation governing employment law in Malaysia is the Employment Act 1955 (“EA”). An employee is covered by the EA (“EA Employee”) if they have entered into a contract of service and their monthly wages do not exceed RM2,000.00 (irrespective of occupation), or if they are involved in specific work (for example, manual labour, maintenance and operation of any vehicle etc) regardless of monthly wage. All other employees are not covered by the Employment Act (“Non-EA Employees”).
EA Employees are entitled to paid sick leave in accordance to their length of service with the company:
(a) Less than 2 years of service: 14 days
(b) More than 2 years, but less than 5 years of service: 18 days
(c) More than 5 years of service: 22 days
EA Employees are also entitled to 60 days paid sick leave if hospitalisation is necessary as may be certified by a registered medical practitioner or medical officer. However, EA Employees are only entitled to an aggregate of 60 days paid sick leave in one calendar year.
Any employment agreement with an EA Employee which attempts to fix less favourable terms than what is provided in the EA, will not be enforceable.
In order for an EA Employee to be entitled to their sick leave, they must first be examined by a registered medical practitioner or dental surgeon and be certified as being ill enough to require sick leave. Those who: (a) claim to be on sick leave but do not have a medical certificate; or (b) do not inform or attempt to inform their employer within 48 hours of commencement of their sick leave, will be deemed absent from work without permission of their employers. Absenteeism without permission and without reasonable excuse is a misconduct which could possibly justify termination of employment.
As for Non-EA Employees, since they are not covered by the EA, their sick leave benefits and requirements are governed solely by what is stated in their contract of employment or company policy.
HANDLING “CHRONIC” SICK LEAVE
Employers will inevitably encounter a few bad seeds that attempt to abuse their sick leave entitlements. Employers should therefore ensure that they have a proper system to record and monitor sick leave, and that both legal and internal requirements are being complied with. For example, if the human resources department does not follow up with employees to request for their medical certificate, it will foster an unhealthy culture where employees are tempted to test their limits and see what they can get away with. On the other hand, a vigilant human resources department will discourage employees from trying to circumvent the system.
If there are reasonable grounds to believe that employees are abusing their sick leave entitlements, the appropriate enquiries and investigations should be commenced immediately, and disciplinary action taken against those found to be committing infractions. Monitoring the usage of sick leave is also pertinent even if the employee is legitimately on sick leave, as an employer may need to know if the employee’s working environment is a contributing factor to the frequent sick leave.
It is good practice for employers to request prospective employees to disclose relevant medical history, and to undergo a pre-employment medical check-up. Some roles may not be suitable for individuals with underlying health conditions, and getting this right from the start may also help minimize excessive utilization of sick leave.
As of June 2014, the Malaysian Health Ministry is considering a centralized system to allow employers to track employees’ sick leave records, even from previous employment. While the intention behind the proposed system is laudable in that it seeks to minimize abuse of sick leave and improve labour productivity, there are still many issues to be considered before such a system can be implemented. With the advent of the Malaysian Personal Data Protection Act 2010, there is now an increased awareness of the protection of personal information, and the thought of medical history being publicly available to current and prospective employers may not sit well with some quarters.
In the meantime, if chronic unjustified sick leave is becoming a problem, employers may want to look into the root cause rather than just trying to fix the symptoms. Motivated, satisfied and fulfilled employees are far less likely to be sick and tired of work.
ABOUT THE AUTHOR. Donovan Cheah is a partner at Donovan & Ho. He is an advocate and solicitor of the High Court of Malaya, and his writings have been featured in publications like The Star, the American Chamber of Commerce updates, and Asialaw.