Employees’ temporary incapacity for work does not mean “vacation time,” so that when being recognized temporarily unfit for work, employees are still obliged to fulfil certain duties stipulated by the Labour Code (Act No. 262/2006 Coll., as amended, (“LC”)), and eventually other laws, primarily Act No. 187/2006 Coll., on Sickness Insurance (“SIA”), as amended. However, a recent Supreme Court judgement ruled that not every breach of employees’ obligations during temporary incapacity for work may lead to termination of employment by the employer.
The employers are firstly entitled to check, within the first 14 calendar days of employee’s temporary incapacity for work, whether employees (having been recognized as temporarily unfit for work) comply with the regimen prescribed to them (in their capacity as insured persons who are temporarily unfit for work) with regard to obligations (duties) laid down by SIA, i.e. to remain at home during such incapacity and to observe the extent of permitted outings; employees are obliged to facilitate such checks (cf Sec 192/6 LC, and Sec 65/2 letter c) SIA). In addition, employees recognized as temporarily unfit for work are obliged, pursuant to Sec 64/1 letter b) and Sec 65/2 letter c) SIA and Sec 192/6 (first sentence) LC, to provide sufficient co-operation to the employer in this connection, especially to clearly designate / mark his or her place of residence during temporary incapacity so as to facilitate the employer’s check. Employers may also ask the competent district social security administration to carry out this check within the first 14 calendar days instead of the employer.
Employee temporarily unfit for work or employees under a quarantine are generally entitled, during the first 14 calendar days of their temporary incapacity or quarantine, to receive compensation for wage or salary in the amount of 60 % of their average earnings; however, employees will not entitled to wage or salary compensation for the first three days of their temporary incapacity.
Should an employee breach his duties as per Sec 192/6 (first sentence) LC, i.e. duties forming part of the regimen prescribed to the employee as an insured person, within the first 14 calendar days of temporary incapacity, the employer may decide to curtail this employee's wage or salary compensation or to withhold such compensation altogether, depending on the gravity of the employee's breach. In cases where the employer ascertained employee's breach of obligation(s), the employer shall draw up a written record stating the facts constituting such a breach; a copy of this record shall be provided to the employee and to the locally competent district social security administration (according to employee's place of residence during temporary incapacity), as well as to the employee’s doctor.
Pursuant to Sec 52 letter h) LC, employees may be given a notice of termination by the employer if they breach another obligation pursuant to section 301a LC in an especially serious manner; pursuant to Sec 301a LC, in the first 14 calendar days of temporary incapacity for work, employees are obliged to observe the prescribed regimen, i.e. to:
- to remain at home / place of their residence; and
- to observe the time and extent of permitted outings from home pursuant to SIA.
Where employees are given notice of termination pursuant to Sec 52 letter h) LC due to breach of regimen, the employer are not permitted to reduce or withhold wage or salary compensation due to this employee.
In its recent ruling, the Czech Supreme Court decided, considering case No. 21 Cdo 5126/2014, on whether an employer may give a notice of termination to an employee if this employee failed to clearly designate / mark the place of her residence during temporary incapacity for work, and thus failed to enable the employer to check whether she was complying with prescribed regimen during the first 14 calendar days of her temporary incapacity for work. The Supreme Court ruled that the notice of termination in such case was invalid. Pursuant to Sec 50/2 LC, the employer may give notice of termination to an employee only for one of the reasons explicitly stated in Sec 52 LC. Given that the employee´s duty to enable the employer to check compliance with prescribed regimen and to co-operate with the employer in this connection, especially to designate place of residence during temporary incapacity, does not arise from Sec 301a LC, the breach of this obligation, even in an especially gross manner, may not form the reason for termination given by employer pursuant to Sec 52 letter h) LC. In other words, only a breach of obligations laid down in Sec 301a LC in an especially gross manner may constitute valid grounds for the employee´s dismissal pursuant to Sec 52 letter h) LC, and not just any breach of obligations connected with the prescribed regime. Another interpretation would constitute an inadmissible broadening of grounds for termination given by employers. When ascertaining such a breach of employee´s obligations, employers should, most effectively, request that the competent district social security administration carry out control on their own.