What should an employer do if there is a suspicion that an employee is abusing sick leave? How to act within the law, maintaining a balance between the rights of the employee and the interests of the company? In the article, the expert comments on legal mechanisms, possible actions of the employer, and key risks that should be taken into account in order not to violate labor legislation.
How often can an employee take sick leave? Are there any restrictions?
Currently, Ukrainian legislation does not set any restrictions on the number of times an employee has the right to take sick leave. Accordingly, an employee can take a sick leave certificate and be on sick leave as many times as he needs. However, if an employee is on sick leave for more than 4 months in a row, the employer may dismiss him on his own initiativeSuch a right for the employer is provided for in clause 5, part 1, article 40 of the Labor Code of Ukraine.
When planning to dismiss an employee under this clause, the employer must take into account important nuances:
- This period does not include maternity leave.
- In some cases, an employee may be absent for more than 4 months, but he cannot be dismissed. For example: if the loss of working capacity occurred due to an occupational injury or occupational disease, the position is retained until recovery or disability is established; if the employee falls ill with tuberculosis, the sick leave can last up to 10 months with the preservation of the position (Article 25 of the Law "On Protection of the Population from Infectious Diseases").
- On the day of dismissal, the employee is still on sick leave, so the dismissal is unjustified.
What are the signs that an employer might suspect sick leave abuse?
The law does not clearly define the signs of sick leave abuse – each case is individual. However, an employer can pay attention to typical suspicious situations that occur repeatedly:
- Permanent sick leave during reporting periods, peak loads, or important deadlines.
- Regular illnesses on Monday or Friday or immediately before/after a vacation.
- Frequent short sick days (up to 5 days to receive compensation only from the employer).
- Employee identification in public places on days off.
These signs are not exhaustive and always require individual assessment.
Can an employer refuse to pay sick leave if they suspect abuse?
No, suspicion alone is not enough to deny sick leave. However, the employer has the unquestionable right to verify the validity of the issued sick leave certificate.
Sick leave is not paid in a number of cases specified by law. In particular, temporary disability benefits are not provided if:
- injury or illness sustained during the commission of a criminal offense;
- the employee intentionally harmed himself to avoid going to work or faked an illness;
- the person was under arrest or undergoing a forensic medical examination;
- the employee underwent compulsory treatment by court order;
- the illness or injury occurred due to alcohol/drug intoxication;
- the period of illness fell on unpaid leave, creative or educational leave;
- The sick leave was found to be unfounded.
These exceptions are defined in Part 1 of Article 16 of the Law "On Compulsory State Social Insurance".
What is the algorithm for an employer in case of suspected abuse of sick leave?
The employer has the right to initiate a check of the validity of a hospital employee, but cannot conduct it independently. This is done by authorized representatives of the Pension Fund of Ukraine (PFU) in accordance with the Law "On Compulsory State Social Insurance" and Resolution of the Cabinet of Ministers of Ukraine No. 185 dated 03.03.2023.
To initiate an inspection, the employer must:
- Submit a written application to the territorial body of the PFU.
- Get a certificate based on the inspection results.
- Make a decision on granting or refusing to pay assistance (by issuing an order, directive, etc.).
If the benefit has already been paid, and the sick leave is recognized as unjustified, the compensation is provided by the medical institution or the individual entrepreneur who issued it. The territorial body of the PFU applies with a corresponding request (in accordance with Article 28 of the Law).
Can an employer contact health authorities to verify the validity of sick leave?
No, the employer cannot directly contact healthcare authorities or doctors to verify the validity of the sick leave, since, as described in more detail above, such a right (according to the legislation) is vested in the PFU bodies or doctors authorized by them.
What liability is provided for an employee if the fact of abuse is proven??
If the sick leave is deemed unfounded and it is established that the employee knowingly contributed to this (provided false information, agreed with the doctor, etc.), he may be prosecuted for:
- Disciplinary liability — for violation of labor discipline (Articles 139, 147-149 of the Labor Code). This may be a reprimand or dismissal. But dismissal is possible only if a disciplinary penalty has already been imposed previously.
- Criminal liability — if the employee himself faked the sick leave (Article 358 of the Civil Code of Ukraine). In the event of a conviction that makes further work impossible, the employee may be dismissed under Clause 7, Part 1, Article 36 of the Labor Code.
- Material liability: limited — up to the amount of average monthly earnings (Article 132 of the Labor Code); full — if the actions have the characteristics of a crime (Article 134 of the Criminal Code).
In all cases, it is necessary to have sufficient evidence of the employee's guilt.
Could this be grounds for dismissal?
The law does not provide for a separate basis for dismissal for abuse of sick leave. However, if a sick leave letter (or several) is found to be unfounded, the following dismissal options are possible:
- Systematic failure to fulfill duties (clause 3, part 1, article 40 of the Labor Code) - if the employee has repeatedly violated labor discipline and has already been subject to disciplinary action.
- Absenteeism (clause 4, part 1, article 40 of the Labor Code) - if the employee was absent for more than 3 hours without a valid reason. Sick leave is a valid reason, but if it is recognized as unjustified, the absence is considered disrespectful.
To dismiss on these grounds, evidence is required that the employee is to blame for the unjustified sick leave, not the doctor. The employer must also follow the disciplinary procedure in accordance with Article 149 of the Labor Code.
What risks does an employer face if they wrongfully accuse an employee?
If an employee is unjustifiably accused of abusing sick leave, he can file a complaint with the State Labor Service and initiate an investigation.
If a violation of labor rights is established (for example, illegal collection, mobbing, non-payment or delay in payment of sick leave, deprivation of bonuses), the employer may be fined from 1 to 3 minimum wages (Article 265 of the Labor Code).
In addition, the employer's officials face an administrative fine of from 510 to 1,700 UAH (Articles 41, 173-5 of the Code of Administrative Offenses).
The employee may also go to court, and the employer will have to reimburse legal costs, moral damages, or other payments if the court sides with the employee.
How can an employer prevent abuse without violating employee rights?
To prevent sick leave abuse, the employer should:
- ensure control over the correctness of sick leave registration: compare the opening/closing dates with the actual absence of the employee, analyze the frequency, duration and suspiciousness of sick leave;
- conduct explanatory work with employees regarding the consequences of abuse;
- to introduce into the provisions on remuneration and bonuses a provision that in the event of unjustified sick leave, the employee loses the bonus or other bonuses;
- to prescribe in the Internal Regulations that unjustified sick leave due to the employee's fault is a violation of discipline and entails liability.
These measures will help reduce risks and encourage employees to follow the rules.
Source: budni.robota.ua
