The summer is almost over and most employees are back from their annual summer holiday, but maybe one of your employees have called in sick while on holiday. What do you do as an employer in this situation?
You are probably already aware of the rule in the Danish Holiday Act section 13(2) stating that an employee who becomes sick before the holiday commences is not obligated to start the holiday - but what happens when the employee calls in sick when already away on holiday?
According to the Danish Holiday Act section 13(3) an employee, who has earned the right to 25 holiday days and becomes ill during the holiday, has the right to replacement holiday after the first 5 sick days. If the employee has not earned the right to 25 holiday days, the employee is entitled to replacement holiday after a proportionate amount of sick days.
The right to replacement holiday, is subject to the employee providing the employer with medical documentation, stating that the employee is ill. The employee’s right to replacement holiday starts on the day the employee calls in sick, meaning that if the employee calls in sick on the second day of illness, the first day does not count towards the first 5 days of illness or as part of the replacement holiday days.
The employee can accrue the 5 first sick days over several holiday periods within the holiday year, e.g. if the employee is away on holiday in week 7 and have 3 sick days, and becomes ill again when away on holiday in the weeks 28, 29 and 30 and have 7 sick days. In this scenario the employee will be entitled to 5 replacement holiday days, provided that the obligations mentioned below are met by the employee.
On the first 5 days of the employee’s sick leave during the holiday, the employee is still considered to be away on holiday and will spend these 5 days as part of the annual 25 holiday days. For the rest of the planned holiday period where the employee has called in sick, the days are considered as sick days with normal salary, provided that the employee is entitled to pay during sick leave.
There are certain requirements that the employee needs to meet in order to be eligible for replacement holiday:
The employee must call in sick while on holiday.
- The employee must at own expense provide medical documentation proving the illness.
- The medical documentation must be obtained by the employee upon the first day of illness.
- The medical documentation must be in the form of a sick note or other valid documentation from a doctor or hospital.
- If the employee is on vacation in another country when the illness arises, the employee must, on the first day of illness, obtain reassuring and adequate medical documentation from a local doctor or hospital.
When the employee recovers and reports fitness for duty, the employee must as a rule return to work, even when the employee recovers within the agreed holiday period. The employee can, however decide whether to continue the rest of the planned holiday. If the employee chooses to return to work instead of taking the rest of the planned holiday, you are as the employer obligated to accept this. The employee will be entitled to take both the replacement holiday days and any unused holiday days at another time within the holiday year.
It is also important to be aware that illness is considered a holiday obstacle that gives the employee the right to take the unused holiday in the next holiday year, if the employee’s sick leave has prevented the employee from using all 25 holiday days within the holiday year.