Worldwide: Sickness Absence Management - Employee Rights, Risks And Recommendations

France

Under French law, the employment contract of an employee who is on sick leave is suspended. The employee is expected to inform his or her employer and the relevant social security organisations of the sickness absence within 48 hours, and will be entitled to receive social security allowances while absent from work.

Depending on the provisions of the applicable collective bargaining agreement, employees may be entitled to receive their full salary for a limited period. In such cases it falls to the employer to pay the difference between usual salary and the allowances provided by the French social security organisations.

Employees suffering from a workplace accident or occupational disease benefit from protection during their sick leave, meaning that their employment cannot be terminated.

In addition, even where absences are not caused by an occupational disease or workplace accident, some collective bargaining agreements will prohibit an employer from terminating an employee’s employment during sick leave. In cases where collective bargaining agreements do not contain such provisions, an employee can be dismissed during sick leave for reasons not related to his or her state of health, or where prolonged or repeated absences disorganise the functioning of the company, making permanent replacement of the employee necessary.

Employers should therefore take note of the provisions of any applicable collective bargaining agreement before applying any measure to employees away on sickness absence, since these provisions are generally favourable to employees.

Also, employers should ensure that a work resumption examination is carried out (i) after an employee has suffered an occupational disease, no matter how long the duration of the absence was, and (ii) 30 days after work accident or absence for sick leave which is not linked with an occupational disease.

Germany

In Germany, an employee is generally entitled to receive sick pay amounting to 100% of his or her salary for up to six weeks. German national health insurance compensates employers for 80% of sick pay so long as the employer does not employ more than 30 employees.

Where an illness lasts longer than six weeks, the employee will receive a sickness allowance from the national health insurer amounting to 70% of the employee’s salary for a period of up to 78 weeks. The situation is more complicated if the employee suffers from numerous different illnesses and/or returns to work before getting ill again.

An employee must inform his or her employer immediately of an absence because of illness. If an employee is sick for more than three days, he or she must provide the employer with a doctor’s note (although the employer can ask the employee to hand in a doctor’s note earlier than this without having to give reasons).

Whether it is possible to terminate employment because of illness depends on the circumstances of each individual case. If the German Protection Against Unfair Dismissal Act applies, a dismissal based on a long-lasting illness or frequent short-time illness is only possible if it is highly likely that the employee will not fully recover so that he would be able to fulfil his contract duties in the future (i.e., “negative prognosis”).

From our experience, German labour courts are reluctant to accept that such a negative prognosis applies. In this context, if an employee is sick for more than six weeks within 12 months, an employer should invite the employee to a meeting to discuss the situation and his/her re-integration following the absence. The purpose of such a meeting is to discuss in what way the workplace has influenced the absence of the employee, and determine whether the employer can make any changes and help to improve the employee’s health. The employee is not required to attend the meeting or give any details regarding his/her illness. However, it could be detrimental to the employee’s legal position if he or she refuses to attend such a meeting and later contests a dismissal because of illness.

Hong Kong

In Hong Kong, the Employment Ordinance (Cap. 57) (“EO”) provides for a scheme of “sickness day” entitlements. Under the EO, employees working under a continuous contract for a period of one month or more, accrue paid sickness allowance as follows:

  • Two paid sickness days for each completed month of employment in the first 12 months of employment
  • Four paid sickness days for each completed month of employment thereafter, up to a maximum of 120 paid sickness days

Only those employees who take four or more consecutive sickness days are entitled to paid sickness allowance, up to the maximum amount accrued. To be entitled to paid sickness allowance, employees must have an appropriate medical certificate.

Sickness allowance is paid at a daily rate equivalent to four-fifths of the daily average wages earned by the employee during the 12-month period immediately preceding the sickness absence (or, if the employee has been employed for fewer than 12 months, four-fifths of the daily average over such shorter period).

The EO only provides the statutory minimum sickness entitlements in Hong Kong. It is common for employers to have in place more generous benefits than the EO, such as payment of full salary during sick leave.

It is worthwhile to note that it is a criminal offence for an employer to dismiss an employee who is on statutory paid sick leave, unless the employer is summarily dismissing him or her in accordance with section 9 of the EO. In such cases, the employer bears the onus of proving that it has valid grounds to summarily dismiss the employee.

United Kingdom

In the UK, employees have no statutory right to receive their contractual pay during time spent away from work on sick leave. They may, however, have a right to receive statutory sick pay (“SSP”) at a fixed amount set by the government. Any entitlement to pay beyond SSP will depend on the terms and conditions of each employee’s contract and/or the employer’s sickness absence policy.

In order to qualify for SSP, employees need to satisfy various conditions and must have been off work sick for four or more days in a row. Employees must also notify their employer of their absence and submit evidence of incapacity as agreed with the employer (e.g., a doctor's fit note or employee’s self-certification form confirming the cause and duration of the sickness absence).

In the UK, “capability” is a potentially fair reason for dismissal. In other words, where the employee is incapable of performing her or his role for health reasons, an employer may proceed to dismiss the employee on these grounds. However, before an employee is dismissed on the grounds of ill-health, it is necessary for the employer to consult with the employee and discuss the matter with him or her. The employer must also take steps to discover the true medical position (for instance, by obtaining a doctor’s report).

Note that there is a risk of disability discrimination claims in the UK. Under the Equality Act 2010, employees must not be treated less favourably because of a disability, and employers have a duty to make reasonable adjustments in the workplace where a disabled job applicant or employee is placed at a substantial disadvantage. The Equality Act provisions regarding disability are relatively complex, but employers should bear in mind that they have a broad application to all aspects of the employment relationship, including dismissal.

To help to mitigate the risk of unfair dismissal/disability discrimination claims, therefore, employers should:

  • Have in place a comprehensive and well-publicised sickness absence policy
  • Carefully monitor employees’ sickness absence
  • Keep in contact with absent employees, ensuring that all meetings held with the employee and medical evidence obtained are fully documented

USA

In the United States, there is no national law requiring paid sick leave. The primary federal law governing medical leave is the Family Medical Leave Act (“FMLA”). The FMLA requires employers with 50 or more employees to allow certain employees to take up to 12 weeks of unpaid leave, if the employee has a “serious health condition” that renders him or her unable to perform the requirements of the job.

As a result, throughout most of the United States, whether an employee accrues paid sick time is generally determined unilaterally by the employer or through collective bargaining with unionized workforces.

In a minority of jurisdictions (for example, California, Connecticut, and Massachusetts), employers are required to provide paid sick leave for employees. In other states, a patchwork of municipal laws imposes differing requirements on employers. For instance, while there is no state law requiring paid sick leave in Oregon, companies with employees in Portland or Eugene (as of July 1, 2015) are subject to those cities’ paid leave laws and must provide paid sick leave for people employed within those cities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.