Termination of contract due to frequent illnesses - is it possible?
Unfortunately, employers quite often deal with employees who abuse sick leave or who are simply sick. It cannot be denied that frequent or long-term absences of an employee disrupt work in the company. Such situations force the employer to hire new people or burden other employees more. What can an employer do with a subordinate who has a lot of absenteeism? Is it possible to terminate the contract due to frequent illnesses? You will learn about it in the article.
An employee's illness is a justified absence from work, provided that the employee provides L4 confirming it. The employee should provide a sick leave immediately, but not later than within 7 days from the date of issue. The employee retains the right to remuneration for the period of inability to work due to illness. For the first 33 days of illness in a calendar year (14 days for people over 50), the employer pays the sick employee the sick pay. After exceeding this period, the employee receives a sickness benefit, which is paid by the employer or ZUS, depending on who is the contribution payer.
The total period of receiving remuneration and sickness benefit may not exceed 182 days or 270 days in the case of pregnancy or tuberculosis. The benefit period includes all periods of uninterrupted incapacity for work, as well as periods of previous incapacity for work caused by the same illness, provided that the interval between the end of the previous incapacity for work and the occurrence of the next one did not exceed 60 days.
What if after 182 days or 270 days respectively, the employee is still unable to work? Then, if the following conditions are met, the employee may receive a rehabilitation benefit:
the employee expires the period of receiving the sickness benefit,
the employee is still unable to work,
the ZUS certifying physician determined that further treatment or rehabilitation is likely to regain the ability to work.
Rehabilitation benefit may be taken for a maximum of 12 months. If the 12-month period is too short for you to regain full working capacity, you may apply for an Incapacity Benefit.
Termination of contract due to frequent illnesses
Both frequent and long-term absences of an employee are a justified reason for terminating the employment relationship. It does not matter whether they were not guilty and whether they were excused.
It is possible to terminate the contract due to frequent illnesses.
Termination of the employment contract without notice
As a rule, an employer cannot terminate an employment contract with an employee who is on sick leave (Art. 41 of the Labor Code). However, according to Art. 53 § 1 of the Labor Code, the employer may immediately terminate the contract with the employee if the incapacity for work due to illness continues:
longer than 3 months (regardless of whether this period consists of one or more periods of inability to work, it is important that continuity is maintained) - in the case of an employee employed by a given employer for a period shorter than 6 months,
longer than the total period of receiving remuneration, allowance and rehabilitation benefit on this account for the first 3 months (182 or 270 days + 3 months of rehabilitation benefit) - this applies to an employee employed by a given employer for at least 6 months or if the inability to work was caused by an illness work accident or an accident at work.
The jurisprudence shows that long-term incapacity for work should not be included in the 6-month work experience.
Importantly, the employer cannot terminate the employment contract without notice after the employee comes to work due to the cessation of the cause of absence (Article 53 § 3 of the Labor Code). Additionally, as indicated in Art. 53 § 5 of the Labor Code, the employer should, if possible, re-hire an employee who, within 6 months of termination of the contract, immediately due to incapacity for work due to illness, reports his return to work immediately after the cause has ceased to exist.
Termination of the employment contract with notice
In addition to the immediate termination of the employment contract, it is permissible to terminate the contract due to frequent illnesses and after the end of a long absence due to illness, the duration of which was insufficient to terminate the contract with immediate effect.
In the event of frequent illnesses or long-term absence from work due to illness, the employment contract may be terminated with immediate effect or by notice.
In order for an employment contract to be terminated by notice for the above reasons, it must be proved that these frequent absences or prolonged illness disrupt work in the company. The dismissal will be justified, e.g. if the employer is exposed to greater expenses due to the employee's absence (e.g. due to overtime of other employees). Additionally, in order to terminate the contract in this manner, the employee cannot be on sick leave.
The termination of the employment contract will also be justified if the occupational medicine physician determines the presence of health contraindications to perform work at a given position during a follow-up or periodic examination.
From the judgments of the Supreme Court, we can conclude that each situation should be treated individually. Such an assessment should take into account not only the interests of the employer, but also the attitude of the employee concerned towards employee duties. It cannot be allowed that the termination of the contract due to frequent or long-term illnesses is contrary to the principles of social coexistence. Such a situation will take place, for example, when we terminate a contract of a long-term employee who has fulfilled his duties impeccably.