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.

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