Employment law
Sickness: prolonged or repeated absences, how to resolve them without dismissing for illness
In the Banankoro Logistique warehouse, Seydou's forklift has been parked for eight months: the driver keeps sending certificates for a long illness. At reception, Fanta has taken nine sick leaves of two or three days since January. The director wants to "sort the problem out" and talks about dismissal for disruption. Yet that reasoning comes from French law: in Mali, the way out follows a different path, and a poorly written letter will cost more than the absence.
Banankoro Logistique is a warehousing company with 70 employees based in Bamako. Seydou has been a forklift driver there for eight years and earns XOF 200,000 a month; Fanta is a receptionist. This company and the people mentioned are fictitious: their names are used for illustration only.
1. What exactly are we talking about?
Two situations look alike without falling under the same rules: a prolonged absence, a sick leave lasting months, and repeated absences, a series of short sick leaves. In both cases, each absence covered by a medical certificate suspends the contract (Labour Code, article L.34).
One principle governs everything else: sickness is not misconduct. Every dismissal must rest on legitimate grounds, proven by the employer if disputed, and it is unfair when 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).
The "disruption of the business" trap
Many templates explain that an employer may dismiss when absences "disrupt the running of the business" and "require permanent replacement". These criteria come from French case law. The Malian Labour Code reasons differently: it sets a suspension period, then organises the way out through replacement of the employee.
You never dismiss the illness. Beyond six months, you organise the replacement.
2. Prolonged absence: six months, then replacement
Suspension for non-occupational illness is limited to six months, but it is extended until the date the worker is replaced (L.34).
| What the text says | What follows from it |
|---|---|
| Suspension is limited to six months | For six months, the post is protected |
| It is extended until the replacement date | As long as the employee has not been replaced, the suspension continues, however long it lasts |
The turning point is therefore not a date, but an act: the actual replacement of the employee. Until it happens, Seydou's contract remains suspended, even after eight months.
Covering the absence without a long-term commitment
During the suspension, Banankoro Logistique may hire a forklift driver on a replacement fixed-term contract, designed to temporarily replace an employee whose contract is legally suspended (Labour Code, article L.20). This contract states the name and qualification of the employee replaced (Decree No. 2022-0125/PT-RM of 4 March 2022, article D.20-1). It does not give rise to a precarity payment (article L.24). See Replacement fixed-term contract.
Drawing the consequences of replacement
The Code does not set out what follows for ordinary employees. The only text describing it concerns domestic staff: when the illness exceeds six months and the employer must permanently replace the employee, it may record the termination following the legal procedure, notify the employee by registered letter, and pay the payment in lieu of paid leave and, where length of service allows, severance pay (Decree No. 96-178/P-RM, article D.86-34).
As a precaution, Banankoro Logistique applies the same logic to Seydou and treats the termination as a dismissal: a written letter stating the objective reason, namely absence of more than six months and permanent replacement, never the state of health; informing the labour inspector by registered letter (Labour Code, article L.40); payment of termination entitlements.
Example. Seydou has 8 years' service and earns an average of XOF 200,000 a month.
Severance pay, first 5 years: 200,000 × 5 × 20% = XOF 200,000
Severance pay, 6th to 8th year: 200,000 × 3 × 25% = XOF 150,000
One month's notice, paid as a precaution: XOF 200,000
Total, excluding paid leave: XOF 550,000
What you need to do
- Cover the absence with a replacement fixed-term contract that names the employee replaced.
- Beyond six months, decide on and date the permanent replacement.
- Notify the termination in writing, never citing the state of health, and inform the labour inspector.
3. Repeated short absences
The Labour Code contains no specific rule on repeated short absences. Three situations must be distinguished.
| Situation | Treatment |
|---|---|
| Repeated absences, each covered by a certificate | As many successive suspensions: no misconduct (L.34) |
| Certificates missing or sent late | The breach concerns the formality, not the illness; it can only be held against the employee if the deadline is set in the collective agreement or internal rules |
| Unjustified absences | No wage is due (L.101); a sanction is possible under the internal rules (L.64) |
No wage is due for an absence outside the cases provided for by regulations or an agreement (Labour Code, article L.101). If a sanction is considered, suspension without pay may not exceed eight days (article L.34) and fines are prohibited (article L.69).
The forgotten tool: the return-to-work visit
In the case of repeated absences totalling more than fifteen days in the same six-month period, the employee must undergo a return-to-work medical visit. It checks for any link between working conditions and the illness, and whether the employee can resume the job or needs rehabilitation (Social Security Code, article 45).
Example. Fanta's absences since January.
9 sick leaves of 2 or 3 days: 22 days of absence in total
Threshold for the return-to-work visit: more than 15 days in the six-month period
Conclusion: the return-to-work visit is compulsory
The employer must then take into consideration the occupational doctor's opinions, in particular on changes of post (article 48). A reception desk exposed to draughts or an unsuitable schedule may explain repeated sick leave: the visit will reveal it. See Sickness.
What you need to do
- Keep a record of absences per six-month period, with the dates certificates were received.
- Arrange the return-to-work visit as soon as the total exceeds fifteen days in the six-month period.
- Only sanction a genuine breach of a written obligation, never the sick leave itself.
4. What to do, in order
- Reconstruct the history in writing: dates of absence, dates certificates were received, periods covered.
- Check the collective agreement and internal rules: deadline for sending certificates and more favourable job guarantees.
- Calculate when the employer's compensation under article L.37 ends, which does not coincide with the end of the suspension.
- Arrange the return-to-work visit when the thresholds in article 45 of the Social Security Code are reached.
- Beyond six months of continuous absence, decide on permanent replacement and document it.
- Follow the termination procedure: written letter stating the grounds, informing the labour inspector, notice and severance.
What you need to do
- Open an absence file for each employee concerned.
- Record each step in writing before moving on to the next.
5. Phrases never to write
| Phrase | Why it backfires on the employer |
|---|---|
| "Your repeated absences disrupt the department" | Reasoning taken from French law; the grounds remain linked to health (L.51) |
| "Your state of health no longer allows you to hold the post" | Grounds based on health, and discrimination if it targets a disability or HIV (L.4) |
| "Your contract ended after six months' absence" | Inaccurate: the suspension is extended until replacement (L.34) |
| "We note that you have abandoned your post" | False as soon as a certificate covers the absence (L.34) |
The ground in the letter is replacement beyond six months. Never the illness.
A closer look: suspension and compensation, two different clocks
The employer compensates the sick employee under article L.37: full remuneration for a period equal to the notice period, then, after the first year of service, half remuneration for the following month. For Seydou, whose notice period is one month, compensation therefore stops after two months, while the suspension continues until replacement.
During this period, length of service is not wiped out: up to six months, sickness absences count towards paid leave (article L.149) and are not deducted for the seniority bonus (article L.97).
Key takeaways in 6 points
- Never base a termination on illness or on the "disruption" it causes.
- Treat the contract as suspended as long as the absent employee has not actually been replaced, even beyond six months.
- Cover the absence with a replacement fixed-term contract that names the employee replaced.
- Arrange the return-to-work visit as soon as repeated absences exceed fifteen days in a six-month period.
- Only sanction unjustified absence or a breach of a written obligation to give notice.
- Treat a termination after replacement as a dismissal: reasoned letter, inspector informed, entitlements paid.