Employment law
Employee sickness in Mali: suspension, compensation and limits
Monday, 7 a.m., at the Faladié Métal workshop. Ousmane's welding station stays cold: his wife brings in a medical certificate, severe malaria, three weeks off, maybe more. The workshop manager wonders how long he must keep the post, what he has to pay during the absence and whether he can hire someone else. Every wrong answer turns into a back-pay claim, or a disputed dismissal.
Faladié Métal is a metal fabrication workshop in Bamako with 25 employees. We will follow Ousmane, a welder paid monthly for three years, and Awa, a storekeeper hired seven months ago. This company and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
Sickness does not end the employment contract: it suspends it. Suspension means the contract is put on hold: the employee no longer works, the employer no longer pays the ordinary wage, but the contract still exists and the job is protected.
The contract is suspended while the employee is absent because of illness or a non-occupational accident confirmed by a medical certificate (Labour Code, article L.34). Two expressions carry the rule: "non-occupational" and "medical certificate".
| Situation | Regime | Who pays compensation |
|---|---|---|
| Illness or accident in private life | Suspension of 6 months, extended until replacement (L.34) | The employer, under article L.37 |
| Occupational accident or disease | Suspension for the whole period of incapacity (L.34) | The National Social Security Institute (INPS), through a daily allowance (Social Security Code, article 115) |
For occupational accidents, see Occupational accidents: regime, benefits and job protection.
No certificate, no suspension
An absence without a medical certificate is not a suspension within the meaning of the Code. No wage is due for an absence outside the cases provided for by regulations or an agreement (Labour Code, article L.101).
The most common mistake
Holding the employee to a 48- or 72-hour deadline for sending the certificate, as if it were in the Code. The Labour Code sets no such deadline. Only domestic staff have a written rule: inform the employer within 48 hours, with a certificate that may be required after three days' absence (Decree No. 96-178/P-RM of 13 June 1996, article D.86-26). For other employees, the deadline must be set in the collective agreement or internal rules.
Sickness puts the contract on hold. It does not end it.
What you need to do
- Require a medical certificate for every sickness absence.
- Check the applicable deadline for sending it in the collective agreement and internal rules.
- Distinguish ordinary illness from an occupational accident from day one.
2. How long does the contract stay suspended?
Suspension for non-occupational illness is limited to six months, but it is extended until the date the worker is replaced (L.34). The six months are therefore not an automatic cut-off: it is the actual replacement of the employee, not the passing of the sixth month, that ends the suspension.
| Situation | The contract is… |
|---|---|
| 2 months off, then return | Suspended, then resumed normally |
| 8 months off, no replacement | Still suspended: the extension applies |
| 8 months off, actual replacement in the 7th month | The suspension ends on the replacement date |
The replacement mechanism and how to draw the consequences are set out in Sickness: prolonged or repeated absences.
What the absence does not take away
Up to six months, absences for medically confirmed illness count as working time when calculating paid leave (Labour Code, article L.149). Within the same limit, they are not deducted from the service taken into account for the seniority bonus (article L.97).
What you need to do
- Record the start date of each absence and calculate the six-month date.
- Never treat the contract as ended at the end of the sixth month.
- Include sickness absences, up to six months, when calculating leave and the seniority bonus.
3. What must the employer pay during the absence?
For non-occupational illness, compensation is paid by the employer (Labour Code, article L.37). It depends on the employee's length of service.
| Length of service | What the employer pays |
|---|---|
| During the first year of service | A payment equal to remuneration, for a period equal to the notice period |
| After the first year | Full remuneration for the notice period, then half remuneration for the following month |
The notice period depends on the employee's category: 8 days for staff paid by the day or week, one month for employees paid monthly, two months for supervisors, three months for managers, unless a collective agreement provides otherwise (Labour Code, article L.41).
Example. Ousmane, a welder paid XOF 180,000 a month, has three years' service. His notice period is one month. His absence lasts four months.
1st month, full remuneration: XOF 180,000
2nd month, half remuneration: 180,000 × 50% = XOF 90,000
3rd and 4th months: nothing payable by the employer under article L.37
Total paid: XOF 270,000
Example. Awa, a storekeeper paid XOF 150,000 a month, is in her first year of service. Her notice period is one month. Her absence lasts two months.
1st month, full remuneration: XOF 150,000
2nd month: nothing, since she has not completed her first year
Total paid: XOF 150,000
In the fourth month, Ousmane's contract is still suspended, but the obligation to pay has ended. Suspension and compensation do not stop together.
And the INPS?
The Social Security Code does not provide an INPS daily allowance for ordinary illness: it provides one for occupational accidents and diseases (article 115) and for maternity (article 28). However, the company's medical service, often the inter-company medical centre, provides free care and medicines to the worker and his family, within the limits set (Social Security Code, articles 52 and 54).
What a mistake costs
The employee can claim unpaid compensation for three years (Labour Code, article L.118).
What you need to do
- Determine the employee's notice period and length of service on the date the absence began.
- Calculate the full-pay period, then the half-pay month after the first year.
- Stop the payment on the scheduled date, without assuming the contract ends at the same time.
4. Can an employee on sick leave be dismissed?
The answer separates two questions: the grounds and the timing.
The grounds. Sickness is not misconduct. Every dismissal must rest on legitimate grounds, which the employer proves if they are disputed; it is unfair if it has no legitimate grounds or if the reasons given are inaccurate (Labour Code, article L.51). The Code also prohibits any discrimination based in particular on invalidity, disability, HIV and AIDS (article L.4). A letter citing the employee's health condemns itself.
The timing. The Code does not expressly prohibit dismissal during a suspension for ordinary illness, unlike illness following maternity leave (article L.183). But during the suspension, work is not owed: blaming the employee for not working amounts to blaming him for being ill.
A dismissal based on grounds unrelated to the illness, and provable without it, remains possible: a properly conducted economic dismissal, established earlier misconduct. The ordinary procedure then applies in full, including informing the labour inspector by registered letter (Labour Code, article L.40).
You may dismiss a sick employee for a reason that has nothing to do with his illness. Never because of it.
5. Returning to work: the return-to-work medical visit
Ousmane comes back after four months. Before putting him back on the welding station, Faladié Métal must send him for the return-to-work medical visit.
This visit is compulsory after an absence of more than three weeks for non-occupational illness, and in the case of repeated absences totalling more than fifteen days in the same six-month period. Its purpose is to assess whether the employee can return to his former job, or needs rehabilitation (Social Security Code, article 45). Time spent at the visit is taken from working hours without any deduction from pay, or paid as normal working time (article 46).
The employer must take into consideration the occupational doctor's opinions, in particular on changes of job and post (article 48). See Occupational doctor.
What you need to do
- Schedule the return-to-work visit before the return to the post, as soon as the absence exceeds three weeks.
- Track cumulative short absences per six-month period to trigger the visit beyond fifteen days.
- Apply the occupational doctor's recommendations on adapting the post.
6. The most costly mistakes
| Mistake | What it leads to |
|---|---|
| Treating an absence as job abandonment without checking whether a certificate has arrived | A sanction or dismissal based on an inaccurate fact (L.51) |
| Believing the contract ends at the sixth month | A contract still in force, whose irregular termination will be costly (L.34) |
| Stopping compensation and suspension at the same time | An overpayment or a back-pay claim (L.37) |
| Writing "for health reasons" in a dismissal letter | Illegitimate grounds written by the employer's own hand (L.51) |
| Putting the employee back to work without a return-to-work visit | A breach of the Social Security Code (article 45) |
A closer look: domestic staff
For domestic employees, Decree No. 96-178/P-RM of 13 June 1996 sets out the rules (articles D.86-26 and D.86-34).
- In case of illness, the employee informs the employer within 48 hours, except in cases of force majeure. A certificate from an approved doctor may be required after three days' absence.
- The employer pays compensation under article L.37 and, where applicable, the value of benefits in kind.
- When the illness exceeds six months and the employer must permanently replace the employee, it may record the termination following the legal procedure: registered letter, payment in lieu of paid leave and, where length of service allows, severance pay.
Key takeaways in 6 points
- Require a medical certificate: without it, the absence is not a suspension and no wage is due.
- Keep the post beyond six months as long as the employee has not actually been replaced.
- Pay the article L.37 compensation: full pay for the notice period, then half pay for one month after the first year.
- Do not confuse the end of compensation with the end of the suspension.
- Never dismiss because of illness: only grounds unrelated to health, and proven, can justify a termination.
- Arrange the return-to-work visit after three weeks' absence or fifteen days of cumulative absences in the six-month period.