A recent court decision has held that employees who engage in paid work while signed off sick will lose sick leave benefit for the whole period of their incapacity.

By: Łukasz Chrusciel

Firm: Raczkowski Paruch

In a recent case we worked on for one of our clients, the court held that an employee who performs paid work during a period of incapacity for work, or who uses sick leave in a way that is contrary to its purpose loses sick leave benefit for the entire period of incapacity for work.

In a verdict of 22 November 2018, the court of second instance made some crucial findings about misuse of sick leave. The dispute in Poland is whether individuals who abuse the sick leave system should lose their sick leave benefit for the entire period of incapacity for work or just for the portion that was covered by the sick leave certificate (ZUS ZLA, or the so-called ‘L4’).

The majority of jurisprudence holds that benefits should be lost only for the portion covered by the L4. Unfortunately, this approach works in favour of employees who divide the period of incapacity for work into multiple shorter periods covered by individual sick leave certificates. The court formally agreed with that interpretation but added that if an employee is proved to have misused sick leave several times, it is reasonable to assume the leave was misused for the entire period. In this case the court held that the employee must return the sick leave benefit for the entire period even though abuse was proven in only some cases.

This interpretation facilitates the process of recovering sick pay (which is paid by the employer before paying sick leave benefit), provided that there was no discontinuity between the period covered by sick pay and the period covered by the sick leave benefit.

We hope that this ruling marks a shift in jurisprudence in this respect. The usual practice so far has been for the employee to lose sick leave benefit entitlement only for the portion of the period of incapacity for work that was covered by the sick leave certificate that was proved to have been abused.

For more details or any specific matters, feel free to get in touch with the authors or search for a local lus laboris employment lawyer.

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