Abuse of Sick Leave as a Stumbling Block for Trade Unions and Employers – Part Two

In the previous text, we dealt with the question of what is considered an abuse of the right to a sick leave and pointed out that the employer must be aware that proving the abuse of the right to a sick leave requires the appropriate procedures pursuant to the law.

Accordingly, the employer has the legal right to take the necessary actions prescribed by the Labor Law[1] and the Health Insurance Law[2] if he doubts the justification of the reasons for the employee’s absence from work stated in the certificate of temporary incapacity for work.

How can the employer prove that the right to a sick leave has been abused?

1. Submitting a request to the competent health authority

Pursuant to Article 103 of the Labor Law, if the employer doubts the justification of the reasons for absence from work, he may submit a request to the competent health authority to determine the health ability of the employee, in accordance with the law.

Article 179, paragraph 4 of the Labor Law also provides a possibility for the employer to refer the employee for appropriate analysis to an authorized health institution designated by the employer, at his own expense, in order to determine the potential abuse of the right to a leave due to temporary incapacity for work.

The question arises, which is the competent health authority in terms of the Labor Law, which can take action in such cases. Although it can be concluded from the relevant provision of Article 179, paragraph 4 that the employer can choose the appropriate institution at his own expense, it is necessary to keep in mind the regulations that determine who is responsible for assessing the employee’s working ability.

In this regard, the Law on Healthcare[3] stipulates in Article 107 that the Republic of Serbia establishes an Institute for Occupational Medicine, which performs healthcare activities in the field of occupational medicine, i.e. occupational health and is competent to assess work ability, suffering from occupational diseases, work-related illnesses, consequences of injuries at work and out of work, to assess work and general ability, assess physical impairment and perform other expertise related to the working ability of employees.

Having in mind the stated provision of Article 107 of the Law on Healthcare, it can be concluded that the competent health authority for determining the health ability of an employee is actually the Institute for Occupational Medicine established by the Republic of Serbia.

2. Objection in the procedure of exercising the right

Already at the moment of declaring a sick leave, if there are indicators to suggest that there could be an abuse of the right to a sick leave, the employer can check whether there are justified reasons, by submitting an objection to the first instance medical commission of the Republic Health Insurance Fund (“RHIF”) against the assessment given by the chosen doctor in the certificate.

Therefore, in case the employer suspects abuse, he may file an objection to the first-instance medical commission, verbally or in writing to the selected doctor against whose assessment he was declared, or directly in writing to the first-instance medical commission, within three working days from the day of getting a notice on the assessment.

Reading the provisions of the Law on Health Insurance, at first glance, it seems that the objection is a remedy intended for the insured person, i.e. the employee against the decision of the chosen doctor. However, Article 155 of the Law on Health Insurance prescribes that the provisions of this law relating to the procedure of the insured person’s objection shall apply accordingly to the objection stated by the employer. This is also confirmed by the provision of the law which prescribes the obligation of the first-instance medical commission to inform the insured person, the selected doctor, the RHIF branch, and the employer, about its assessment.

The subject complaint procedure is urgent, however, in practice the problem can occur if the selected doctor in the health center, incorrectly interpreting the norms of the Law on Health Insurance, disputes the employer’s right to file a complaint, under the excuse that the employer has no active legitimacy to do so, since the complaint can allegedly be submitted only by the insured person. If the norms of the Law on Health Insurance are interpreted correctly, and the employer does not have to elaborate on his active legitimacy, upon receiving the objection, the selected doctor is obliged to immediately consider the objection and, if he finds that it is unfounded and does not change his decision, he shall submit the case without delay to the first instance medical commission, with his opinion about whether the objection is justified. Deciding on the complaint, the first instance medical commission of the RHIF initiates the renewal of the assessment procedure of the insured person and gives its opinion on whether the period of temporary incapacity for work was justified or not and which period that was. It may happen that the sick leave was justified for a certain period during which the employee was absent, but that in the remaining period of leave there were no grounds for incapacity for work. In that case, this would be considered a breach of work discipline and a reason to terminate the employment agreement.

At this stage of complaint consideration, employers can expect only one short notice about the commission’s opinion, without detailed information on how the first-instance medical commission came to its assessment. Accordingly, if the employer is not satisfied with the assessment of the first-instance medical commission, it can request the RHIF branch to issue a decision which is to be considered final in the administrative procedure. After that, the employer is authorized to launch an administrative dispute, thereby refuting the decision if he is not satisfied with it.

3. Renewal of the temporary incapacity assessment procedure

Pursuant to Article 156 of the Law on Health Insurance, the employer may, within 30 days from the day of issuing the assessment of temporary incapacity for work, submit a request for re-examination of the employee. This is the so-called renewal of the assessment procedure on temporary incapacity for work.

Therefore, in a situation when the employer doubts the justification of the sick leave subsequently, i.e., when certain circumstances that cause suspicion appear over time, he can submit an appropriate request, but no later than within 30 days from the assessment. Re-assessment is performed on the basis of medical documentation in the presence of the insured, and, if necessary, on the basis of re-examination of the insured.

The problem in this situation is usually the slow handling of the request, and the fact that by the time the request has been decided upon the symptoms, i.e., the alleged symptoms, which were the reason for the temporary incapacity for work can already disappear.

In any case, this is another form of protecting the employer from the abuse of the right to a sick leave, which should certainly be used if there is a reasonable doubt and probability that the employee is not incapacitated for work due to an illness, an injury, or his health condition in general.

4. Expertise on the health condition of the employee

The RHIF may request expertise in the procedure of exercising the right to temporary incapacity for work. However, the employer may submit a request requesting the fund to conduct an expertise in connection with the exercise of all rights of insured persons from the compulsory health insurance, including an expert opinion on the health condition of the insured person.

In a specific case, the expertise is performed by the first instance medical commission – if the assessment, i.e., a certificate of temporary incapacity for work was given by the selected doctor, which is usually the case. However, the legislator also envisages that the Republic Fund may hire independent experts from appropriate health institutions, i.e., expert commissions from certain branches of medicine.

An expert report may be requested within one year from the day of exercising the rights from the obligatory health insurance. This control first determines whether the sick leave is medically justified, i.e., whether the absence from work is covered by appropriate medical documentation and whether there is evidence of the employee’s health condition in order to start a sick leave.

This is most often a situation when the employee is on a sick leave for a longer period of time, hence this type of check is not purposeful in the case of shorter absences from work.

5. Independent implementation of the procedure by the employer

Can the employer appoint its own commission to determine whether there has been an abuse?

It often happens in practice that the employer, unable to conduct the procedure before the RHIF in time, appoints a commission composed of other employees, to determine whether the employee is abusing the right to temporary incapacity for work, and orders the commission to check whether the employee is at rest in the place of residence, visiting his apartment or similar. In this particular case, the employer assumes the role of a “spy”, which is absolutely forbidden.

The legislator has quite clearly defined the manner in which the abuse of the right to a sick leave is determined, and such a step for the employer, although sometimes accepted by the court, carries a high risk for the thus determined abuse, and the decision to terminate the employment agreement, to get annulled by the competent court.

In this regard, the Supreme Court of Cassation has taken the position that the control of an employee outside the workplace is an exception that must be narrowly interpreted. In that regard, the SCC referred to the principle of protecting the dignity of the employee at work and pointed out the fact that the employer cannot expand its powers outside the norms established by law to control the employee’s work, and that the employer cannot conduct proceedings in a manner not prescribed by the law[4].

Can the employer prove through a witness that the employee abused the right on a sick leave?

In a situation when the employer finds out that the employee has abused the right to sick leave by being caught performing certain activities, the question arises whether the employer can use this in a disciplinary proceedings against the employee and take witness statements in order to gather evidence that the employee thus abused the right to a sick leave.

The case law is diverse in this respect and primarily depends on the activity in which the employee was caught. When the employer determines through witnesses or other written evidence that the employee performed work for another employer or the so-called undeclared work, the court has accepted the witness statements as sufficient evidence to establish that there had been abuse[5]. However, if the employee is found performing certain activities, such as staying in cafes, traveling, etc., we are of the opinion that according to court practice, the employer should conduct the procedure in the manner prescribed by the law – by the competent medical authorities. This is precisely because it often happens that courts find that the fact that an employee has undertaken a certain activity cannot be interpreted as contrary to the prescribed therapy of the employee if the employee has not been ordered to rest. This is usually the case when the employee is absent from work due to a disease of a neurological nature, when the employee is generally not advised to rest for the purpose of recovery.

What should an employee do if a procedure is initiated by the employer to determine that the sick leave has been abused?

If the employer invites the employee to perform an appropriate analysis in an authorized health institution to determine whether the right to temporary incapacity for work has been abused, the employee is obliged to respond to the employer’s invitation to perform the analysis.

Otherwise, if the employee does not respond to the invitation of the employer, this is considered non-compliance with the work discipline, and the employee may, based on the refusal to perform the analysis, get his employment agreement terminated.

In case a procedure of re-assessment of temporary incapacity for work has been initiated, in terms of Article 156 of the Law on Health Insurance, the employee is obliged to report to the medical commission within the deadline determined by the professional medical body of the RHIF.

This is due to the fact that the re-assessment is performed on the basis of medical documentation in the presence of the insured, and if necessary, on the basis of a re-examination of the employee. If the employee does not respond to the invitation for re-evaluation without a justified reason, the payment of the salary compensation shall be suspended, and he shall not be entitled to the compensation until he responds to the invitation.

In short, if the appropriate procedure is initiated in accordance with the law, the obligation of the employee is to respond to such an invitation and access the review or appropriate analysis.

We also point out that the actions of the employer taken in accordance with the regulations, in order to check the health condition of the employee and protection from possible abuse of illness, represent the employer’s right to legal protection, and cannot be characterized as acts of abuse of the employee at work. Many times in practice it happens that the employees see the actions of the employer that actually refer to the use of permitted legal means, as the actions of the employer by which the employee is abused at work or in connection with work. However, the actions taken by the employer in accordance with the cited regulations regarding the verification of possible abuse of a sick leave are not acts of harassment at work, and the chances of employees succeeding in the proceedings they might initiate in that sense are very slim, almost non-existent.

Conclusion

If the employer suspects that the right to temporary incapacity for work has been abused, it is recommended to follow the legal procedure for contesting in accordance with the Labor Law and the Health Insurance Law. Other action of the employer and attempt to determine that the right to temporary incapacity for work has been abused carries with it the risk that the competent court in the labor dispute will determine that the employer did not act in accordance with the law and that the decision to terminate the employment agreement is not legitimate. However, this does not mean that the employer cannot use the information collected from the witnesses, commissions, etc., which indicates that there has been an abuse of rights, but on the contrary, when addressing the branch of the RHIF, the employer should point out all the facts from the assessment of the chosen physician.

In this regard, it is important for employers to be aware that the procedure before the termination of the employment agreement is more important than the subsequent court proceedings, because any non-compliance with the law or procedure by the employer before the termination of the employment agreement, and the issuance of a disputed work and the decision on termination of the employment contract is the subject of assessment in court proceedings. In other words, if the procedure for termination of the employment agreement has not been properly conducted, or the decision has not been made lawfully, the same cannot be subsequently corrected in court proceedings. Therefore, it is a correct decision of employers to hire an expert legal advisor already in the process of conducting the procedure to determine whether there has been an abuse of the right to temporary incapacity for work and to terminate an employment agreement, in order to prevent subsequent labour disputes and ensure that the employer acted in accordance with the law.


[1] Official Gazette of the RS, no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – Decision of the CC, 113/2017 and 95/2018 – authentic interpretation

[2] Official Gazette of the RS, no. 25/2019

[3] Official Gazette of the RS, no. 25/2019

[4] Decision of the Supreme Court of Cassation Rev2 842/2017 as of 30.11.2017

[5] Decision of the Supreme Court of Cassation Rev2 1752/2015 as of 10.11.2016

FOR MORE INFO CONTACT:

Milinko Mijatovic

Milinko Mijatović

Attorney-at-law | Senior Counsel
Emilija Radojev

Emilija Radojev

Attorney-at-law | Senior Associate
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