With the Rio Olympics well under way, employers will likely be faced with employment issues related to the Olympic fever.
For example, what to do when you suspect that your employee has called in sick to watch an Olympic event on TV? What about employees taking holidays to attend the games, or even participate as an athlete?
Over coming weeks, we will provide practical answers to five of such employment questions and will comment on the legal pitfalls which might exist under BE, NL and LUX law.
Q: Your employee, Maria, is a huge fan of the Dutch women’s 4x100m relay team and does not want to miss a race on TV. One of the races, however, is scheduled during working hours. You have told Maria that she cannot take the day off due to the holiday season. Maria then calls in sick. What can you do under Belgian, Dutch, and Luxembourg law?
A. In any event, Maria shall:
- immediately inform her employer of her illness;
- transmit a medical certificate to her employer upon first request or in the timing foreseen by the work regulations or by the applicable collective bargaining agreement.
In the absence thereof, Maria’s absence will be considered unjustified and will not entitle her to the “guaranteed salary” which should be granted by the employer during the first 30 days of her incapacity for work.
An employer having doubts as to the reality of the illness of an employee is always entitled to submit the absent employee to a medical exam by an independent control doctor (“médecin-contrôleur” or “controlearts”) in order to verify the accuracy of their incapacity for work. If the illness is disputed by the independent doctor and if the latter decides that the employee is able to work, the employee will lose his/her right to the guaranteed salary from the date of the medical examination. The employee will however have the right to contest the doctor’s report.
In specific circumstances – for instance in the event that the absent employee would post a photo of herself on Facebook with a freshly tapped beer in hand with caption “Pretending to be off sick while really enjoying watching the race at my local pub. Ha! Suckers!” – a dismissal for serious cause could be considered. However, as Belgian case law tends to be severe as to the application of grounds for dismissal for serious cause, we recommend carefully analysing the situation and, if possible, considering a first written warning.
A. If you believe that your employee has falsely called in sick, it is best practice to let the company doctor/Occupational Health Service (OHS) make an emergency home visit (the reason being that an employer is not in a position to assess whether an employee is sick or not). Under Dutch privacy legislation, an employer may ask when the employee is expected to resume work. Questions as to the nature or cause of the illness are however not allowed. Only the company doctor/OHS may process such medical information.
Should the company doctor/OHS determine that Maria is not sick, the main rule which (for now) comes down to ‘no work, no pay’ will apply. In other words, you are entitled to withhold Mary’s salary during the days she has not worked. The company doctor/OHS could also determine that Mary is indeed unfit for her own work, but nevertheless able to take up alternative work. In both cases, it goes without saying that you must summon Maria (in writing) to appear at work.
That said, it gets more complicated when the company doctor/OHS finds that Maria is not at home. Of course, you could at the very least confront Maria by asking her for an explanation. But in the case that your organisation has a sickness absence protocol in place specifying that Maria should have been at home (during the home visit), you can suspend her salary for violating these provisions until she has provided sufficient information to determine that she is unfit for work. Such a suspension is only allowed when the employer immediately notifies (preferably in writing) the employee that his/her salary will be suspended. Note that a suspension of salary is not the same as withholding salary. Once the employee has complied with the control requirements, the employer must – unless it is established that the employee was not unfit for work- still pay the salary over the suspended period.
If it is established that an employee has (repeatedly) falsely reported ill, this may constitute a disturbed working relationship, which is a reasonable ground for dismissal by court order. Dismissal for urgent cause (i.e. instant dismissal) just because an employee in violation of the sickness absence protocol was not at home when the company doctor/OHS made a home visit is, however, too drastic a measure. Case law shows that a (sole) violation of the sickness absence protocol does not qualify as an urgent cause for dismissal.
A: Under Luxembourg labor law, employees are entitled to paid leave and, in principle, they may decide to take their days off whenever they see fit. However, the employer may object due to operational requirements or justified requests of other employees. So, Maria’s employer could refuse the request for the day off she requested (due to the holiday season, for example).
But if Maria happens to be sick on the day of the race, her employer will not be able to sanction her. She must, however, follow procedure: inform her employer of her absence due to sickness and thus benefit from the protection laid down by the Labour code. The employee has the legal obligation to provide the employer with a medical certificate on the third day of sickness.
However, if the employer has doubts on whether the employee is actually sick, they may request that the employee attend a counter-medical examination at a doctor’s practice of his choice.
Moreover, the employer may request an administrative check to be conducted by the National Health Fund of Luxembourg (CNS: Centre National de Santé). In practice, an inspector from the CNS will knock at Maria’s door and report her presence or absence. However, even if the employer files the request on the day of absence, the CNS will take a few days to process it, so Maria will most likely be back at work long before said check even takes place. The employer is consequently obliged to inform the CNS directly if the employee is fit for work again.
In fact, even if the CNS managed to proceed with an administrative check directly, Maria will probably be at home since she wanted a day off to watch the race.
So, if Maria’s employer thinks that she is not actually sick, the only thing they can do is to ask if Maria is already in possession of a medical certificate and, if so, ask her to send a scan/photo of this certificate by e-mail. They cannot however force her to go to the doctor or provide a medical certificate in the first two days of sickness.