Implications of sick leave on the individual employment contract
The work performed by the employee for his employer may be interrupted in certain situations, either on the initiative of one of the parties or as of right. The usual course of the employment relationship may also be affected by the employee’s state of health, in which case the employee is entitled to sick leave.
Leave for temporary incapacity for work, in standard terms – sick leave, is granted without the employer’s prior approval based on a sick leave certificate for temporary incapacity for work issued by the family doctor or specialist doctor.
Sick leave for temporary incapacity for work is granted for a maximum of 183 days in any year. From the 91st day onwards, sick leave may be extended to 183 days, with the opinion of the social security medical expert, if necessary.
Leave due to temporary incapacity for work is a cause for automatic suspension of the individual employment contract. Specifically, during sick leave, both the employee’s work and the employer’s payment of salary entitlements are suspended. As a result, all deadlines relating to the conclusion, amendment, performance, or termination are suspended.
During sick leave, however, employees receive an allowance that is paid, as a rule, for the first five days of sick leave by the employer, and the rest of the amount is paid by the National Health Insurance Fund (FNUASS).
As regards the termination of the individual employment contract, the employee cannot be dismissed during sick leave. This includes the fact that the employee’s disciplinary investigation is suspended until the end of the period of sick leave, and the employee cannot be summoned to his disciplinary investigation.
Suppose at the time of the sick leave, and the employee is already in the notice period (either as a result of dismissal or resignation). In that case, the notice period shall be suspended accordingly until the temporary incapacity for work ends. At this time, the parties shall resume the employment relationship of the notice period.
However, the employment contract will be terminated even during sick leave, for reasons of judicial reorganization of the establishment or bankruptcy of the employer, as well as in the event of a situation of automatic termination of the individual employment contract, among those provided for in Article 56 of the Labour Code – for example, at the date of expiry of the term of the individual employment contract concluded for a fixed term; at the date of retirement, etc.
A particular situation concerns the effects of sick leave on the probationary period. According to Article 31, a probationary period of at most 90 calendar days for executive posts and at most 120 calendar days for managerial positions may be set at the end of the individual employment contract to check the employee’s aptitude. In addition, during the probationary period, the employee shall enjoy all the rights and have all the obligations provided for in the labor legislation.
From the conjunction of the provisions of Article 31 para. (4) and Art. 49 par. (6) of the Labour Code follows that when sick leave intervenes during the probationary period, the probationary period is extended by the days not worked by the employee. Thus, on returning from sick leave, the employee will continue to be on probation, with all the consequences thereof, including the possibility of terminating the individual employment contract exclusively by simple, unjustified notice, without notice, at the initiative of either party.
Given that a leave of absence for temporary incapacity for work also suspends the execution of the employment contract, it follows that the rest left will also be suspended accordingly and will be resumed at the end of the sick leave or a later date, as appropriate.
In conclusion, in the event of a health problem of the employee involving a leave of absence for temporary incapacity for work, the individual employment contract is suspended, by operation of law, in all its aspects, as regards the conclusion, modification, execution, and termination of the individual employment contract.