Large-scale industry employers in Serbia often face the problem
of high absenteeism due to abuse of sick leave by employees.
These cases repeat throughout the year and negatively affect the
profitability of businesses. Employers, therefore, often wonder how
this problem can be solved, and if legislation can offer a
The abuse of sick leave appears in two forms: (i) When it is
approved and used without medical justification (for example when
an employee is not sick at all); and (ii) When the sick leave was
used contrary to the reasons for which it was approved (for example
when employees are working for another employer while on sick
In principle, the Labor Act prescribes that an employee can be
dismissed if he/she abuses the right to sick leave. However, before
dismissal, the employer must prove that the employee was in fact
abusing the right to sick leave.
July 2014 amendments to the Labor Act, were intended to include
more flexibility for employers in proving the abuse of sick leave.
Before the amendments to the Labor Act were adopted, the Act only
regulated the procedure for proving the abuse of sick leave through
the State Medical Institution (the "Official Procedure").
The Official Procedure is designed to allow a medical committee to
reassess the first medical opinion in terms of which the sick leave
was approved. Unfortunately, the Official Procedure in practice
usually provides no results, and is therefore often avoided by
Pursuant to the 2014 amendments of the Labor Act, however,
employers in doubt as to whether sick leave was claimed without
valid medical reasons can either: (i) refer the employees to a
private medical institution for medical analysis in order to
determine whether the employee abused his or her right to sick
leave (at the employer's cost), or (ii) confirm the claimed
sickness by a procedure regulated under the employer's internal
policy. If an employee refuses to undergo the analysis in the
private medical institution, he/she can be dismissed.
Although it seems that employers can easily solve the problem of
abuse of sick leave by simply ordering employees to undergo medical
analysis in private medical institutions, unfortunately the
situation is not so simple.
The results of medical examinations in private medical
institutions have been found to be more objective than the results
of the Official Procedure, as the doctors in State Health
Institutions tend to have an employee-friendly attitude. However,
these results cannot be cited as grounds for termination of
employment. In fact, a private medical institution can only perform
a particular medical analysis (e.g.,blood test, x-ray, or similar
procedures), and the results can then be used in the Official
Procedure. Thus, the possibility of having a particular analysis in
a private medical institution is not beneficial for employers, and
instead the burdensome and time-consuming Official Procedure still
needs to be completed, with results from analysis able only to be
used as additional evidence.
On the other hand, employers are in a position to regulate their
own internal procedures for investigating the abuse of sick leave.
Such procedures can be performed by members of a special committee
who can in principle visit the employee at his/her home in order to
confirm whether he/she is acting in accordance with the
doctor's advice (e.g., if an employee with a broken leg
actually has a cast on his/her leg). However, only in rare cases
can the committee's report be the sole ground for termination
of employment. For instance, if the committee confirms that a sick
employee is out walking the streets instead of resting at home ,
this cannot be taken to be firm evidence, as the medical authority
would need to confirm whether such behavior could have a negative
impact on his/her recovery.
On the other hand, if the employer's committee caught an
employee working for another employer this could be used as
evidence against the employee, and the employment contract could be
terminated without initiating an Official Procedure.
In a nutshell, when the latest amendments to the Labor Act were
prepared, in July 2014, the legislator sought to help employers by
creating a system to prevent the abuse of sick leave.
Unfortunately, however, the abuse of sick leave still remains a
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