Question

"If I don't feel well, can my company force me to go to the doctor?"

Answer

If you don’t show up for work on a Monday or a Friday and fail to submit a doctor’s letter, then it becomes unpaid leave. Any other day is fine, unless it’s more than 2 consecutive days.

Section 23 of the Basic Conditions of Employment Act 57 0f 1997 (“BCEA”) as amended, states that an employee is only required to furnish a medical certificate if "an employee is or has been absent from work for more than two consecutive days or more than two occasions during an eight week period".

However, your employer cannot force you to go to the doctor (unless it is a specific term of your contract of employment - i.e., that you must adhere to certain medical procedures at regular intervals).

You obviously have a duty to render services during your contracted working hours. However, if you can prove that you had a valid reason to be absent (e.g., through a medical certificate), then this falls part of sick leave, and your employer must first utilise any available sick leave, before annual, then unpaid. The onus rests on you (the employee) to prove that your absence was a result of personal illness during the relevant period.

However, if you take frequent sick leave (with or without producing a valid certificate) and your employer does not challenge or investigate this immediately (or in a timely fashion), it could be argued that your employer has accepted the reasons for your absences on each occasion as valid – and therefore it cannot be considered misconduct or abuse on your part.

Sick absences that have gone unchallenged by your employer cannot suddenly become misconduct later on simply because a pattern of frequent sick absences emerges over time. Your employer needs more than just a pattern – there will have to be surrounding circumstances to contribute to the likelihood of deception in relation to this pattern, before misconduct may be indicated.

Your employer needs to present a prima facie case that you likely lied about being sick on some (or all) of the absences and, therefore, abused your sick leave, before the burden passes to you to rebut this inference.      

If, however, such investigations have not been done - or sufficient proof of misconduct and fault on your part is not available - your employer cannot address the frequency of sick absences by way of a disciplinary charge for sick leave abuse. This does not mean that your employer has no recourse to address frequent sick absences and the resultant loss of productivity.

An INCAPACITY process relating to ill health can be initiated against you, with a view to determine whether you possess the health capacity to consistently deliver on your contractual obligations. This is when you may be required to cooperate with a medical investigation (obviously, a version of being 'forced' to see a doctor, as per your question).

Hope this helps.

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