Employment law
Employee off sick: do you have to pay them outside a workplace accident?
Tuesday, 6:30 a.m., at the Niani Logistique depot in Sotuba. Moussa's truck sits at the loading bay, engine cold: his brother brings in a medical certificate, fifteen days off work, perhaps more. At month-end, the question lands on the payroll desk: do you have to pay an employee who is not working, how much and for how long? Paying too much strains cash flow; paying nothing exposes you to back pay and a fine.
Niani Logistique is a transport and warehousing company in Bamako with 60 employees. We follow three of them: Moussa, a driver paid monthly for four years; Aminata, a dock supervisor classified as supervisory staff, with six years of service; Ibrahim, a warehouse handler paid weekly, hired eight months ago. The company and the people named are fictitious: their names are used only as examples.
1. The legal framework: which texts set what you must pay?
Four texts answer the question. Each plays a specific role.
- The Labour Code (Law No. 92-020 of 23 September 1992, last amended by Law No. 2022-005 of 20 May 2022), articles L.34, L.37, L.41, L.101 and L.318: it suspends the contract during illness, sets what the employer must pay and punishes failure to pay.
- The Social Welfare Code (Code de prévoyance sociale, Law No. 99-041 of 12 August 1999, amended in 2003 and 2006), articles 45, 50, 60 and 187: it confirms that the National Social Welfare Institute (INPS) pays nothing for ordinary illness, organises the return-to-work medical check and makes sick pay subject to contributions.
- Decree No. 09-552/P-RM of 12 October 2009 on compulsory health insurance (AMO), articles 28 and 34: it sets the share of medical costs covered, with no income replacement.
- Decree No. 96-178/P-RM of 13 June 1996, articles D.86-26 and D.86-34: it sets the specific rules for domestic workers.
Three sources complete this base. Your collective agreement may provide longer or higher sick pay: it then applies instead of the legal minimum (Labour Code, articles L.70 and L.77). The internal regulations set the practical rules, such as the deadline for notifying the employer. Finally, the General Tax Code (article 1) makes sick pay subject to the tax on wages and salaries.
The most common mistake
Applying French rules found online. The three-day waiting period, daily allowances paid by the Social Security system and pay maintained at 90% then 66% all come from French law. None of these rules exists in Malian law. In Mali, the rule fits in one article of the Labour Code, L.37, explained in section 4.
For ordinary illness, pay comes neither from the INPS nor from the AMO. It comes from the employer, for a limited time.
2. Ordinary illness or workplace accident: who pays?
That same Tuesday, Sidi, a storekeeper, falls off his motorbike between home and the depot. Moussa has malaria; Sidi has had a commuting accident. Both are absent, but they fall under different regimes.
Suspension means the contract is put on hold: the employee stops working, but the contract continues and the job is protected. A non-occupational illness or accident is one with no link to work. It suspends the contract once a medical certificate establishes it (Labour Code, article L.34).
A workplace accident is one that occurs through or in the course of work. An accident on the way between home and the workplace is treated as one (Social Welfare Code, articles 62 and 63).
| Illness or accident in private life | Workplace or commuting accident, occupational disease | |
|---|---|---|
| Who pays | The employer (Labour Code, article L.37) | The INPS, through a daily allowance; the employer pays the day of the accident (Social Welfare Code, article 114) |
| For how long | A limited period, tied to the notice period | The whole incapacity, until recovery or consolidation |
| Formality | A medical certificate | Report to the INPS and the labour inspectorate within 48 hours (Social Welfare Code, article 71) |
Why the difference? Occupational risk is covered by the workplace accident contributions you pay to the INPS. Private-life illness has no income scheme: the Social Welfare Code refers sick workers to the guarantees of articles L.34 and L.37 of the Labour Code (Social Welfare Code, article 60).
The AMO changes nothing on payroll. It reimburses part of medical costs (70% of outpatient care and 80% of hospital stays, in an approved facility), never wages (Decree No. 09-552/P-RM, articles 28, 29, 34 and 35).
The most common mistake
Treating Sidi's commuting accident as an illness. An employer who fails to report it within 48 hours faces a fine of 20,000 XOF and must cover the care and daily allowances for the temporary incapacity (Social Welfare Code, article 239). For that regime, see Workplace accidents: the scheme, benefits and job protection.
Accident at work or on the way to work: the INPS pays. Illness in private life: the employer pays.
What you need to do
- Ask from day one whether the absence is linked to work or to the commute.
- Report any workplace or commuting accident to the INPS within 48 hours.
- Apply the article L.37 regime only to illnesses and accidents in private life.
3. The medical certificate: the key that unlocks sick pay
Ibrahim does not come in on Monday or Tuesday. He returns on Wednesday and explains he had a fever. He has no certificate.
Without a medical certificate, the absence is not a suspension within the meaning of article L.34. It therefore gives no right to sick pay: no wage is due for an absence outside the cases provided for by regulations or by an agreement (Labour Code, article L.101). The certificate protects both sides: it proves the employee could not work and justifies the employer's expense.
The Labour Code sets no deadline for handing in the certificate. Only domestic workers have a written rule: notify the employer within 48 hours, barring force majeure, and a certificate may be required after three days' absence (Decree No. 96-178/P-RM, article D.86-26). For your other employees, set the deadline in the internal regulations or apply the one in your collective agreement.
Do you doubt the illness is real? The Social Welfare Code provides that a worker who reports sick is sent to the medical check of the inter-company medical centre (article 50).
The most common mistake
Telling Ibrahim that a 48-hour deadline is “required by law”. Neither the Labour Code nor its implementing decrees set that deadline for employees other than domestic workers. If he brings a certificate covering Monday and Tuesday, and no deadline is written in your internal regulations or collective agreement, refusing sick pay exposes you to a back-pay claim.
No certificate, no suspension, no sick pay.
What you need to do
- Set out in the internal regulations whom to notify, how and within what deadline.
- Require a medical certificate for every sickness absence.
- Refer the employee to the inter-company medical centre if in doubt.
4. How much to pay, and for how long?
Moussa is off for three months. Aminata, four months. Ibrahim, three weeks. They will not receive the same amount: article L.37 links sick pay to length of service and to the notice period.
The employer pays the employee in two stages (Labour Code, article L.37):
- during the first year of service: a payment equal to the employee's pay, for a period equal to their notice period;
- beyond the first year of service: the same period on full pay, then half pay for the following month.
The notice period is the time between the announcement that a contract will end and the date it actually ends. Its length depends on the employee's category. Without a collective agreement, it is set as follows (Labour Code, article L.41):
| Employee category | Full pay (length of notice) | Half pay, after one year of service |
|---|---|---|
| Paid by the day or week | 8 days | 1 month |
| Paid monthly | 1 month | 1 month |
| Supervisory staff and equivalent | 2 months | 1 month |
| Managers and executives | 3 months | 1 month |
Why the notice period? Every employee already knows it, and it grows with qualification: protection follows the same scale. The Code provides no waiting period: sick pay runs from the first day of the suspension.
The pay to use is what the employee would have earned had they worked. The Code defines pay as basic salary plus all other benefits paid because of the work (article L.95). Sums that reimburse expenses are not included. For a domestic worker, add the value of the benefits in kind they no longer receive (Decree No. 96-178/P-RM, article D.86-26). For a part-time employee, sick pay is proportional to their working time and pay (Order No. 1566/MEFPT-SG of 7 October 1996, article A.133.6).
Example. Moussa, a driver paid monthly, earns 200,000 XOF gross a month, regular bonuses included. He has four years of service; his notice period is one month. He is off for three months.
Month 1, full pay: 200,000 XOF
Month 2, half pay: 200,000 × 50% = 100,000 XOF
Month 3: no statutory payment
Total due: 200,000 + 100,000 = 300,000 XOF
Example. Aminata, a dock supervisor classified as supervisory staff, earns 350,000 XOF gross a month. She has six years of service; her notice period is two months. She is off for four months.
Months 1 and 2, full pay: 350,000 × 2 = 700,000 XOF
Month 3, half pay: 350,000 × 50% = 175,000 XOF
Month 4: no statutory payment
Total due: 700,000 + 175,000 = 875,000 XOF
Example. Ibrahim, paid weekly, earns 7,500 XOF per day worked. He is in his first year; his notice period is 8 days. He is off for three weeks. During the first 8 days, he would have worked 7 days, Sunday being his rest day.
First 8 days: 7 × 7,500 = 52,500 XOF
Following days: no statutory payment, as he has less than one year of service
Total due: 52,500 XOF
Your collective agreement may provide more: a longer period or a higher rate. It then applies: an agreement can improve on the law, never fall below its mandatory rules (Labour Code, article L.70). To find out which one applies, see Which collective agreement applies to my company, and where can I find it?
The most common mistake
Believing full pay lasts one month for everyone. It lasts as long as the employee's notice period: eight days for Ibrahim, two months for Aminata, three months for a manager. Applying the one-month rule to Aminata means paying her 525,000 XOF instead of 875,000 XOF: 350,000 XOF is missing.
Full pay for the notice period, half pay for one more month after a year of service. After that, the law requires nothing more.
What you need to do
- Record each employee's category and notice period from their contract or collective agreement.
- Calculate the full-pay period, then the half-pay month if the employee has more than one year of service.
- Compare with the collective agreement and apply the more favourable rule.
A closer look: what article L.37 does not say
Article L.37 is two lines long and leaves two questions open.
The first concerns its wording. For employees with more than one year of service, the text mentions only half pay, “for the one-month period following the full-pay period”. That wording assumes a full-pay period comes first: the reading used here, which is also the most protective, adds the half-pay month to full pay rather than replacing it.
The second concerns repeated absences. The text does not say whether rights are restored with each new illness or assessed over a twelve-month period. In the absence of a rule, treat each absence separated by a return to work as a new suspension, and check whether your collective agreement settles the question. An extension of the same sick leave remains a single suspension.
5. After sick pay ends: a contract suspended, but no longer paid
In the third month, Niani Logistique pays Moussa nothing more. His contract, however, is not terminated: it remains suspended.
Suspension for illness lasts six months and continues beyond that until the date the employee is replaced (Labour Code, article L.34). Between the end of sick pay and the return to work, no wage is due (article L.101). Pay stops; the job remains protected.
What the absence does not take away
- Paid leave: up to six months, an absence for medically certified illness counts as work (Labour Code, article L.149).
- Seniority bonus: within the same limit, illness is not deducted from time of service (article L.97).
- Family benefits: days of certified illness count as working days, within the limit of article L.34 (Social Welfare Code, article 7).
What happens beyond six months, and the rules on dismissing a sick employee, are covered in Employee illness in Mali: suspension, compensation and limits and Sickness: prolonged or repeated absences. On return, after more than three weeks' absence, organise the return-to-work medical check (Social Welfare Code, article 45).
For domestic workers, the decree sets out how the contract ends after six months of illness: registered letter, payment in lieu of paid leave and, if length of service allows, severance pay (Decree No. 96-178/P-RM, article D.86-34).
The most common mistake
Keeping full pay going “out of habit” for the whole absence, then trying to recover it. An overpayment can only be deducted from later wages within the attachable portion (Labour Code, article L.123). If you choose to pay more than the legal minimum, decide so in advance and in writing.
Sick pay ends before the contract does. The end of pay is not the end of the job.
What you need to do
- Stop sick pay on the calculated date, without touching the contract.
- Count the absence, up to six months, for paid leave and the seniority bonus.
- Organise the return-to-work medical check after more than three weeks' absence.
6. On the payslip: tax, contributions and register
At the end of the second month, Niani Logistique's payroll officer must enter Moussa's 100,000 XOF half pay. Under which heading, and with which deductions?
Sick pay under article L.37 replaces wages: it is treated like them. It appears on the payslip, which details gross pay and deductions (Labour Code, article L.105).
It is included in the base for INPS contributions, which covers all pay and allowances except expense reimbursements (Social Welfare Code, article 187). It is subject to the tax on wages and salaries (ITS), which applies to all sums paid in connection with work (General Tax Code, article 1). Being taxable, it is also included in the base for the AMO contribution (Decree No. 10-601/P-RM of 18 November 2010, article 5).
The payment register must also record absences broken down by cause: illness, workplace accident, authorised or unauthorised absence (Labour Code, article L.107).
The most common mistake
Classifying sick pay as a non-taxable allowance. The list of exempt sums includes severance pay, but not this payment (General Tax Code, article 3). See Non-taxable allowances in Mali.
What you need to do
- Show the payment on the payslip under a clear heading, for example “sick pay (art. L.37)”.
- Calculate ITS and contributions on this amount as on a wage.
- Break absences down by cause in the payment register.
7. What unpaid sick pay costs
Imagine Niani Logistique has paid nothing to Moussa or Aminata. Both end up going to the labour inspector.
Failing to pay sick pay under article L.37 is an offence punishable by a fine of 50,000 to 200,000 XOF, raised to 100,000 to 400,000 XOF for a repeat offence (Labour Code, article L.318). The fine applies as many times as there are offences, up to fifty times the maximum (article L.335).
The employee can also claim the payment for three years (Labour Code, article L.118). Referring the matter to the labour inspector suspends that time limit (article L.190).
Example. Niani Logistique has paid nothing to Moussa or Aminata.
Back pay owed to Moussa: 300,000 XOF
Back pay owed to Aminata: 875,000 XOF
Fines incurred: 2 × 50,000 = 100,000 XOF minimum, 2 × 200,000 = 400,000 XOF maximum
Possible cost: 300,000 + 875,000 + 100,000 to 400,000 = 1,275,000 to 1,575,000 XOF
Back pay is due in full. The fine comes on top: it does not replace it.
The most common mistake
Believing the employee waives sick pay by signing the payslip without reservation, or by writing “in full and final settlement”. Neither amounts to a waiver (Labour Code, articles L.110 and L.111). For the full range of penalties, see What fines does an employer face for breaching the Labour Code?
Forgotten sick pay is paid twice: the back pay, then the fine.
What you need to do
- Check every month the ongoing absences and the sick pay due to each employee.
- Correct any omission without waiting for the employee's claim.
- Keep certificates, calculations and payslips for five years, like the payment register (article L.108).
Key takeaways in 6 points
- Require a medical certificate: without it, the absence gives no right to sick pay.
- Check the cause of the absence: for a workplace or commuting accident, the INPS pays; for private-life illness, you pay.
- Pay full salary for a period equal to the employee's notice period, from the first day of absence.
- Add one month at half pay if the employee has more than one year of service, then stop sick pay without ending the contract.
- Apply your collective agreement if it provides more than the law.
- Treat sick pay like a wage: payslip, ITS, contributions and absence register.