What every employee in the Public Service should know about Temporary Incapacity Leave & ill Health Retirement as determined by PILIR

The Soma Initiative (Pty) Ltd (Soma) as appointed Health Risk Manager to both National and Provincial Departments within the Public Service has become aware that there is much confusion, poor understanding and many ill-founded misperceptions about PILIR (Policy and Procedure on Incapacity Leave and Ill Health Retirement) and the role of the independent Health Risk Manager in assisting departments to manage incapacity leave and ill health retirement in a responsible, transparent and equitable manner.

It is in this context that we attempt in this article to provide some insight into PILIR and the workings of the Health Risk Manager, specifically as relates to concepts in and consequences of, determining the validity or otherwise of incapacity leave and ill health retirement.

In seeking to achieve the aforesaid objective we deemed it most appropriate to do so by posing a number of questions or statements and then providing the answers or details thereto, in the hope that in so doing we may well address a number of your concerns and possible misgivings.

Temporary Incapacity Leave is a privilege of ‘special sick leave’ that may be granted by the relevant employer (i.e. Department) to Public Service employees in deserving cases only.

Temporary Incapacity Leave may not however be granted before an employee has exhausted the “normal” 36 day sick leave available to them for the relevant three year sick leave cycle.

It is important for all employees to understand that Temporary Incapacity Leave is not a Basic Condition of Employment in terms of the Basic Conditions of Employment Act of 1997 (BCEA), and it is furthermore not an employee’s right to be granted such leave; in fact, it is granted entirely and solely at the discretion of the Head of Department and is at the very least, conditional upon a number of qualifying factors, before approval for such leave is granted.

That said there is no limit on the amount of days of Temporary Incapacity Leave that may be granted to an individual, or on the amount of times that an individual may apply for such leave.

Fundamentally however, Temporary Incapacity Leave is specifically reserved only for those employees who suffer significantly incapacitating medical illness or injuries, and is not granted for everyday / “routine” / “minor” conditions.

Yes; temporary incapacity leave is divided into Short Period Temporary Incapacity Leave (SPTIL) and Long Period Temporary Incapacity Leave (LPTIL).

Short Period Temporary Incapacity Leave is for temporary incapacity leave lasting between 1 and 29 working days only, while;

Long Period Temporary Incapacity Leave is for temporary incapacity leave lasting for 30 working days or longer.

For the following reasons:

If an employee suffers from a medical illness or injury which permanently and totally incapacitates such employee and thereby prevents him / her from working in his / her own job or any other reasonable alternate job within the entire Public Service and not only his / her own Department, then such employee may qualify for early retirement on the grounds of ill-health.

In circumstances where an employee has been employed in the Public Service for 10 years or more and now qualifies for ill-health retirement, such employee will receive both a lump sum payment and a monthly payment.

In circumstances where an employee has been employed in the Public Service for less than 10 years and now qualifies for ill-health retirement, such employee will receive only a lump sum payment.

The Policy and Procedure on Incapacity Leave and Ill-Health Retirement (PILIR) came into effect in November 2005 in terms of Section 3 (3) (c) of the Public Service Act of 1994 and must be read in conjunction with the Determination on Leave of Absence in the Public Service,and the applicable Collective Agreements.

Some of the aims of PILIR are to make sure that the processes and procedures around Temporary Incapacity Leave and Ill Health Retirement are applied fairly, consistently, objectively and without bias. In addition PILIR seeks to appropriately accommodate employees who are temporarily or permanently incapacitated, and to prevent the abuse of sick leave as far as possible. In striving for these objectives the policy seeks to ensure that the evaluation of whether an employee qualifies for Temporary Incapacity Leave or ill Health Retirement is performed by suitably qualified expert professionals. These professionals are known as the Health Risk Manager.

In terms of the specific requirements of PILIR, applications for Temporary Incapacity Leave and ill Health Retirement must first be referred to the Health Risk Manager for a professional assessment and recommendation. The final decision whether to approve or decline applications for Temporary Incapacity Leave and Ill Health Retirement however, is still made by the respective Heads of Department.

Whether you apply for Temporary Incapacity Leave or ill Health Retirement, there are forms that must be completed. Depending on the duration of your Temporary Incapacity Leave application, either a “short period” application form or a “long period” application form must be completed. Long Period Temporary Incapacity Leave application forms and Ill Health Retirement application forms consist of different parts – one part should be completed by you, the employee, another part by your direct supervisor or manager and a third part should be completed by your treating doctor.

Short Period Temporary Incapacity Leave application forms also consist of the same parts but are not as detailed nor do you have to have a doctor report.

According to the PILIR policy, you must apply for Temporary Incapacity Leave within five days from your first day of absence from work, even if the first day of absence occurs within your 36 days “normal” sick leave. The fact that you have to submit your application for Temporary Incapacity Leave within 5 days of the first day of absence means that you may, in circumstances where your absence lasts longer than five days, have to submit your application forms even before you return to work. If your application for Temporary Incapacity Leave is because of a planned medical procedure (for example surgery or specialised tests) your application should be submitted before your operation is performed.

If you are applying for Ill Health Retirement, you must remember that your application will be assessed on whether your medical condition is permanent and totally disabling. It is therefore better to wait with your Ill Health Retirement application until your doctors agree that you are totally disabled from working in any job despite maximum medical treatment, and that your condition has stabilised and is unlikely to improve in the future.

In short: everything related to your application!

The more information you supply the better picture the expert assessors can form of your condition.

But remember: what they are really interested in knowing are the facts.

Make sure that your application form contains factual information like dates of hospital admissions or consultations with specialists, details about your medical care and details of how your condition affects your ability to perform your work. The more specific you are the better idea the expert assessors can get of your condition and your ability to work or not work.

As far as medical reports are concerned, make sure that the doctor completing your application form knows your condition well enough to be able to provide the detailed information requested in the form. If more than one doctor is involved in your care, it is recommended that each one should complete a “Statement by Attending Doctor”. Ask your doctor to double-check that he / she has attached all the results of special investigations (x-rays, scans, blood tests etc.) and all the reports from specialists that are relevant to your application.

You are welcome to attach any other information that you may feel is relevant and that you wish the assessors to take note of in determining whether your application is approved or not. You may submit such information in a confidential sealed envelope which only the Health Risk Manager may open.

This difficult situation does arise from time to time. Firstly, you can point out to your doctor that he / she is obliged, in terms of the ethical rules of the Health Professions Council, to provide you a brief, factual report as part of his consultation when you, the patient, requests it. In terms of the rules of the Health Professions Council your doctor must provide you this brief report at no extra charge and as part of the normal consultation fee. Should your doctor refuse to do this or wish to charge you extra for the report you can report this to the Health Risk Manager.

However, completing comprehensive reports, such as those required for a long period Temporary Incapacity Leave application or an Ill Health Retirement application may incur a charge. You, as the employee applying for long period incapacity leave or ill health retirement will be responsible for paying the doctor’s fees for providing such a comprehensive report.

The relevant application forms for Temporary Incapacity Leave or ill Health Retirement as well as the applicable medical certificate(s) are handled and kept strictly confidential in accordance with the prescripts for classified documents (in terms of the Minimal Information Security Standard). In this regard all Government employees working with your application must comply with these confidentiality prescripts and have also signed a Pledge of Confidentiality, promising to keep the medical information they may see or hear confidential. Any Governmental employee found to not honour the Pledge of Confidentiality will be disciplined.

Importantly, any medical information, medical reports, blood tests and so forth that you may wish to send in addition to the standard application forms and the relevant medical certificate(s) may be included in your application in a sealed secure envelope addressed to the Health Risk Manager and marked “Strictly Private and Confidential”. This envelope may not be opened by anyone in your Department no matter how senior, and is strictly for the attention of the independent Health Risk Manager.

All applications for Temporary Incapacity Leave or ill Health Retirement are assessed by an independent company of medical and occupational professionals (called the Health Risk Manager). The company is appointed for a three-year contract after a comprehensive tender process.

Your application will be assessed by a multi-disciplinary team consisting of Medical Doctors, Occupational Therapists, and Professional Nurses trained in incapacity and disability assessment. Soma also has access to a panel of expert specialists in all medical specialities who provide guidance and expert opinions in respect of applications for incapacity leave or ill health retirement, as well as Labour Law and Pension Fund experts. Following its assessment, Soma makes a recommendation to the Head of your Department, who makes the final decision on whether or not to grant you Temporary Incapacity Leave or ill Health Retirement, as the case may be.

Firstly there is an audit of your leave records, to identify any significant trends or patterns which indicate excessive use of sick leave and misuse or abuse of sick leave. Where there is evidence of sick leave misuse your application may well be refused on these grounds alone. In this context you must for example also be aware of the 8-week rule which if contravened may alone result in your application being declined.

Then all of the medical and other information you submitted will be scrutinised and analysed by the disability assessment team to see whether you qualify for either Temporary Incapacity Leave or ill Health Retirement, as per your application. Where the medical and other information submitted does not convince or justify the need for incapacity leave or ill health retirement your application will again be refused.

In this regard you must remember that incapacity leave is specifically intended only for significant medical illness or injuries, and is not granted for everyday / “routine” / “minor” conditions. Incapacity leave is not additional routine sick leave simply given because you have run out of your 36 days normal sick leave.

To qualify for ill Health Retirement you must suffer from a serious medical illness or injury which permanently and totally incapacitates you and prevents you from working in your own job or any other reasonable other job within the entire Public Service and not only in your own Department. If you are not totally and permanently prevented from working in the Public Service you are unlikely to qualify for ill Health Retirement and your application will be refused.

From the very beginning you must submit as much information as you possibly can! In certain cases you may be asked to provide additional medical reports, or to attend one or more examinations with independent doctors, specialists and/or occupational therapists. Where an examination is required the Health Risk Manager (Soma) will make the necessary appointment as close as possible to your place of work but due to various circumstances this may not always be possible, thereby requiring you to travel to such an appointment. If you are required to travel to a medical examination you will personally be responsible for the costs of your transport to and from such medical examination.

Your Departmental PILIR representative will contact you with the date, time and place of any medical examination required. You will not be responsible for the costs of this medical examination which is paid for by the Health Risk Manager (Soma). However, if you are late for a confirmed medical examination appointment or fail to turn up at a confirmed medical examination appointment your Department may well deduct the costs of such fruitless expenditure from your salary. The costs that you are likely to incur in this regard are over R2000.00 per missed examination.

Your Department’s PILIR office can check the progress of your application on Soma’s website using their own login and password. Alternatively, the Departmental PILIR office can contact Soma’s Helpdesk for information on the progress of your application. In order to ensure complete impartiality, Soma does not accept enquiries from employees directly. Should you therefore phone the Soma Helpdesk you will politely be referred back to your Departmental PILIR office.

In terms of the PILIR Policy and the obligations thereof, the Heads of Department or the appointed delegate(s), must inform you in writing of the outcome of your application, and whether it was accepted or declined. Where an application is declined your Department must also inform you of the reasons for the declination of your application.

There may be several reasons for this. Firstly, your application may not have complied with the technical requirements of the PILIR policy. We have already mentioned the time-frame within which applications should be submitted: PILIR states that if you do not submit your application for Temporary Incapacity Leave within five days of the first day of your absence, your application will be declined no matter what was wrong with you. Another rule states that an application for Temporary Incapacity Leave must be accompanied by a medical certificate. Without a medical certificate, your application will be declined. Secondly, your application may have been declined because the medical evidence you supplied did not convincingly show that you were significantly incapacitated, or because you only suffered from a mild or “routine” condition which did not significantly prevent you from attending work. It is therefore essential that your treating doctor(s) provides you detailed information to submit with your application for incapacity leave or ill health retirement. The simple rule is: – the more information you provide the better.

Remember, when incapacity leave is refused it does not mean that you had absolutely nothing wrong with you, it simply means that your ailment did not justify the granting of the privilege of incapacity leave.

Another reason for refusal of an application may be that you simply did not provide sufficient objective information to justify the granting of incapacity leave or ill health retirement. Fourthly, your application may have been declined because your usage of sick leave in the previous and current sick leave cycle was not considered to be judicious and with circumspection. In other words there was evidence of overuse, misuse, unjustified absence, too long an absence, or an outright abuse of sick leave.

Bear in mind that any misuse of other types of leave (e.g. Family Responsibility leave) will also influence the granting of incapacity leave.

Yes without question.

Where your Department acting on the recommendation of the Health Risk Manager, has declined your application for incapacity leave or ill health retirement you are obligated to immediately return to work.

In this regard you must be aware and understand that the submission of further medical certificates from your doctor, that are not materially different from those first submitted with your application, will NOT justify your continued absence.

Where you do not return to work you will likely face disciplinary action for absence without permission even though you may have been given a further medical certificate by your doctor.

In this regard it is essential that all employees understand that simply being in possession of a medical certificate booking you off does not necessarily validate or justify absence from work. In this regard the medical certificate is not the determining factor of whether the absence from work is legitimate and/or acceptable. Remember, that contrary to popular opinion, your doctor is not the decider as to whether you should be granted Incapacity Leave or Ill Health Retirement.

If your application for temporary incapacity leave is refused your absence period will either be regarded as unpaid leave or you will be required to use annual leave. You may also use a combination of annual leave and unpaid leave to cover the time you were absent from work. Remember, your Department is not allowed to use your annual leave without your prior consent and you are therefore required to inform your Department in writing within 5 days of you being informed of the refusal of your application, whether you wish your declined incapacity leave to be taken as annual leave. If you fail to notify your Department within the required 5 days your absence will immediately be instated as unpaid leave.

Please be aware that once your Department has allocated the declined application as unpaid leave it is not allowed to later change the unpaid leave to annual leave, even with your consent.

Simply put: – you will be required to immediately return to work.

Should you fail to return to work you run the risk of being absent without permission which carries the penalty of disciplinary action. You may also find your services being terminated by your Department. Labour Legislation allows for your dismissal in these circumstances on the grounds of incapacity.

Be aware that handing in a medical certificate does not automatically validate an application for Temporary Incapacity Leave or normal sick leave for that matter. Remember that Temporary Incapacity Leave is a discretionary privilege, which the Head of Department may or may not grant, regardless of your doctor’s recommendation to stay at home.

Ill Health Retirement applications are declined for only two reasons: either your condition is not (or not yet) considered to cause permanent disability, or it is not considered to cause total disability. This means that if there are still treatment options available that your employer may reasonably expect you to undergo in order to improve your condition, or your condition is considered to improve by itself over time, your application for ill-health retirement will be declined, as it is not considered to be a permanently incapacitating medical condition. If your condition causes some disability, but there are still areas of work in which you can perform your work duties satisfactorily, your condition will not be considered to be total. You should also remember that, in terms of labour legislation (the Labour Relations Act), your employer must investigate the possibility of adapting your duties / redeploying you, before they can validate your application for Ill Health Retirement.

The PILIR policy does not make any allowance for you to appeal the decision to decline incapacity leave or ill health retirement. However, if you are not in agreement with the decision of the Head of Department regarding your application for Temporary Incapacity Leave or Ill Health Retirement, you may lodge a grievance against the decision. This grievance is lodged and dealt with in exactly the same way as any other grievance lodged by an employee. In certain circumstances only the Department may resubmit your application to the Health Risk Manager for review, although the Department is not obliged to do so.

For your interest the decision to decline temporary incapacity leave cannot be seen or regarded as an unfair labour practice as you cannot have an unfair labour practice in terms of an employer privilege discretionally granted to employees.

Hopefully the aforegoing has provided you relevant and helpful information in assisting you to understand the complexities and ramifications of PILIR.

In the context of striving to achieve the objectives of PILIR and to provide you, the Public Service employee, greater comfort of impartiality and fairness we are more than happy to provide further information and guidance if so requested.