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25.03.2022 Feature Article

Employer Insistence on Excuse Duty from only Government Hospitals is Unlawful

Philip Afeti KortoPhilip Afeti Korto
25.03.2022 LISTEN

Sickness is one of the inevitable things that occur to human beings regardless of their social status and employees are no exception. Both employers and employees do fall sick periodically.

As such, employees occasionally absent themselves from work for several reasons and one of these reasons is sickness. In Ghana, the Labour Law (Act 651 of 2003) makes provision for sick leave (excuse duty) for employees who fall sick and cannot go to work.

Section 22 of the Labour Law permits a worker to interrupt work or be absent from work due to sickness or sick leave granted by a certified medical practitioner. The law indicates that an approved sick leave or excuse duty shall not affect the employee’s annual leave. Accordingly, Section 24 of the law also provides that sick leave is not part of annual leave.

That Section specifically states, “A period of absence from work allowed owing to sickness, which is certified by a medical practitioner, and which occurs after the commencement of and during annual leave shall not be computed as part of the leave.” This provision of the law does not say a medical practitioner working at a public or government health facility. It only says a sick leave certified by a medical practitioner. This provision is tantamount to the lyrics of Lucky Dube’s song dubbed “Different colours.” He sings, “Bible says he made man in his image, but it didn’t say black or white.”

Contrary to the foregoing provisions of the Labour Law, it has been the wrongful practice in Ghana that most managers of public sector organisations insist that their employees can only be absent from duty due to sickness only if the sick leave is granted by a medical practitioner working in a public health facility.

In effect, an excuse duty obtained from a private hospital is not acceptable as a valid sick leave granted by a certified medical practitioner. The question is that who is a certified medical practitioner in Ghana? Is a doctor/medical practitioner certified based on where he or she works or because he is regulated by law?

According to section 175 of the Labour Act, a medical practitioner in Ghana means a medical practitioner registered under the Medical and Dental Decree, 1972 (NRCD 91) or any other law for the time being in force. It must be noted that the NRCD 91 was repealed with the coming into force of the Health Professions Regulatory Bodies Act, 2013 (Act 857).

Upon the combined strengths of the Labour Law and the Health Professions Regulatory Bodies Act, 2013, it is unlawful if an employer insists that an employee’s sick leave is valid only when the leave is granted by a doctor working in a government health facility.

According to law, a registered or a certified medical practitioner in Ghana is one regulated by the Medical and Dental Council (MDC). It is not the doctor’s place of work that makes him or her a legally certified or registered medical practitioner.

Let me reiterate perhaps for ease of understanding that whether or not he or she is working in a government health facility, any medical practitioner certified and duly regulated by the MDC qualifies to grant sick leave or excuse duty to any employee. However, the excuse duty or sick leave must be given on a veracious and justified medical ground backed by documented diagnosis.

For those who hold the view that only doctors working in government health facilities can grant excuse duty for public sector workers, I want to paint this hypothetical scenario to drum home a question. Dr. Obed Ahorkonu and Dr. Philipo were classmates in medical school and both of them were later registered on the permanent register of the MDC to practice medicine in Ghana under Act 857 of 2013.

Whereas Dr. Obed Ahorkonu is currently in the employment of the Nyaho Medical Centre (a private health facility) for example, Dr. Philipo is working at Korle-Bu Teaching Hospital (a public or government health facility).

Does working in Nyaho Medical Centre render Dr. Ahorkonu a non-certified doctor by the MDC hence he cannot grant excuse duty or sick leave to an employee of any organisation in Ghana? I hold the view that the answer to the question is no; Dr. Ahorkonu’s place of work cannot erase the fact that he is certified and regulated by the MDC under Health Professions Regulatory Bodies Act, 2013 (Act 857).

Accordingly, an employer or manager acts unlawfully, if he or she refuses to recognize an excuse duty or sick leave granted by a certified medical practitioner say, Dr. Obed Ahorkonu just because the doctor is working in a private hospital. Borrowing wisdom from Lucky Dube’s lyrics cited ut supra, one may say that the Labour Law says a certified medical practitioner should grant sick leave but it does say a practitioner of a government or private hospital.

Perhaps this write up is an eye opener for labour unions to stand up for the right of their members so that they are not treated unfairly and unlawfully by employers. Any managers or employers who might have been oblivious of the laws regulating the granting of sick leave in Ghana should also be informed by this piece that what they have been doing over the years is their discretion which deviates from law.

I equally call on legal brains to join this debate and perhaps educate the general public on the position of our laws regarding this very subject of who qualifies to grant sick leave to an employee. Is it a doctor working at a government health facility or not? Must employers be allowed to reject excuse duty from private hospitals? I hope to learn more from the lawyers.

~Asante Sana~

Author: Philip Afeti Korto

Email Address: [email protected]

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