Signing a contract during sick leave - what is worth knowing?

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Sick leave, commonly known as L4, is issued by a doctor if the patient is unable to work. The purpose of the sick leave is for the employee to regain the ability to work and he is obliged to follow the doctor's instructions. However, sometimes it happens that, during the illness, an employee wants to sign a new employment contract or extend it with the current employer. Will signing the contract during sick leave lead to the withdrawal of sickness benefits? Let's check it out!

What benefits is an employee entitled to during sick leave?

Since, during illness, an employee cannot work and earn a living, he or she has the option of receiving benefits that will allow him to fully or partially compensate for the lost wages.

You can receive two types of benefits when you are unable to work due to sickness:

  • sick pay (so-called sick pay) as defined in Art. 92 of the Labor Code - paid by the employer for the first 33 days of illness (during the year),

  • sickness allowance under the social insurance system - pursuant to the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity - paid by the Social Insurance Institution.

Of course, to get the above. various conditions must be met for benefits. One of them is the prohibition to work. Under Art. 17 sec. 1 of the Act on cash benefits from social insurance in the event of sickness and maternity - an insured person who performs paid work during sick leave or uses the leave in a manner inconsistent with the purpose of the sick leave loses the right to sickness benefit for the entire period of sick leave. These reasons are considered separately.

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In order to maintain the right to sickness allowance and to sick pay, it is not allowed to work during sick leave or to use the sick leave inconsistently with its intended use, i.e. if the doctor indicates that the patient must lie down, he cannot, for example, do shopping in the mall.

Signing a contract during sick leave - what do you need to know?

It happens that an employee signs a new employment contract, contract of mandate or a contract for specific specific work during the sick leave.

The contract signed during the period of sick leave is valid and its legal consequences cannot be questioned on the grounds that the employee was on sick leave. However, by signing a contract, you may run the risk of losing your sickness benefits.

Example 1.

Anna Kowalska is employed under a fixed-term employment contract until April 20, 2020. In winter, she slipped on the ice and injured her spine. She submitted to the employer several sick leaves (without breaks) in the period from February 1, 2020. until April 16, 2020. Staying on sickness benefit, she felt better. She found an interesting job offer on the Internet. She joined the recruitment process by sending her application. April 2, 2020 participated in an interview, which resulted in the signing of an employment contract on April 3, 2020 with the commencement date on April 21, 202 - that is, she signed the contract while on sick leave, and the work will take place after the contract with the current employer expires.

If the information about signing the contract reaches ZUS, Ms Anna may have to return the sickness benefit received for the entire period of illness, not only from the last sick leave, because she misused the sick leave because she participated in the recruitment process and signed the contract.

The employee may be inspected by both the Social Insurance Institution and the employer.

The fact of signing a contract with another employer while on sick leave may be interpreted by ZUS as performing work or using the sick leave inconsistently with its intended purpose (the patient could, for example, participate in the recruitment process). It does not matter whether the sick person had to lie down or not. When you lose your right to sickness benefit, you must pay it back together with interest. ZUS decisions can be appealed against to the Labor Court.

If an employee on sick leave expires during this sick leave, and the employer would like to extend it, maintaining its continuity, then signing it is most often (but not always) allowed by ZUS, if the employee has not performed work during that time.

Example 2.

Jan Kowalski is employed under a fixed-term employment contract until March 15, 2020. The employer promised him to extend the contract for an indefinite period from March 16, 2020. On March 10, Mr. Jan fell ill and presented his employer with a sick leave until March 20, 2020. Employer 16 On March 2018, he contacted Mr. Jan to sign a contract - continuation of a fixed-term contract. Mr. Jan did not work, but only signed the contract. There was not a single day off between contracts. In such a case, ZUS may find that Mr. Jan did not work or used the leave in a manner inconsistent with the purpose of the leave and it is possible that he will retain the right to sickness benefits and remuneration.

It is not clear from the law whether signing a contract is work. Doubts in this matter are always resolved by the Social Insurance Institution. There are inconsistent positions of the Social Insurance Institution on this matter.

In doubtful matters, you can consult the Call Center (COT) on the phone number 22 560 16 00, where ZUS consultants are available from Monday to Friday from 7.00 to 18.00.

Sometimes, while on sick leave, you will have an opportunity to change your job or sign an additional contract (employment, mandate, specific task) and start work.

Example 3.

Jan Nowak is employed under a full-time employment contract with employer X. He is on sick leave. During the dismissal, he received an offer to work remotely for another employer Y. He signed a contract of mandate and started working "without leaving home". Employer Y, in accordance with the regulations, registered Jan Nowak for health insurance.

ZUS quickly noticed this fact and called on Mr. Jan to return the illegally received sickness benefit in connection with taking up work on sick leave.

It is possible to shorten the period of sick leave, but it is very inconvenient, because the employer is not obliged to admit such an employee to work.

Signing a contract during sick leave and business activity

Signing a contract during a sick leave by self-employed people is a bit different. If the economic activity requires formal and legal behavior of the entrepreneur, then it is not a job. The Supreme Court in the judgment of 4 April 2012 (II UK 186/11) stated that the performance of paid work (...) consists in taking actions which constitute the performance of employee duties or resulting from another legal relationship involving the performance of work.Such works will be the performance of specific activities directly related to business activities, including supervision of employees, customer service, acceptance and issuing of materials. Signing financial documents drawn up by another person and formal and legal running of a sole proprietorship is not considered work if the person running it is also an employer and supervising the company's activities is solely within the scope of his duties.

Similarly, the Supreme Court in its judgment of 6 May 2009 (II UK 359/08) found that "Formal and legal activities undertaken during the period of incapacity for work by a person running a business in connection with their employer status are not paid work resulting in the loss of the right to sickness benefit".

Therefore, it can be concluded that signing the necessary contracts while running a business is permissible, but the position of ZUS in this matter is divergent.

What to do when you get the opportunity to take up another / additional job and you are on sick leave?

If we want this new or additional job, it is best to agree with the future / additional employer to sign the contract after the end of the sick leave or, if this is not possible, all the pros and cons should be converted, taking into account the possibility of reimbursement of the amounts charged for sick pay and sick pay and decide what is more favorable for us.