Law - Too sick to work

By BHAG SINGH

When an employee faces health problems, how long can he be away from work without losing his job?

In view of the global economic slowdown, there is a looming threat of loss of employment as a result of businesses scaling down their operations or closing down.

However, different individuals may face different scenarios and issues of concern.

A reader wrote in to say that because of his poor health, he has used up his entitlement of annual leave.

He does not mind getting no-pay leave but his employers told him that they can no longer continue to employ him and will need to terminate his employment.

Is this fair and allowed by the law, asks our reader.

We are fortunate to be living in a country where there is an abundance of opportunities.

Legislation that has been enacted seeks to provide security of tenure for employees.

Employees cannot be asked to leave without just cause.

This has, in turn, given the impression that lifetime employment is guaranteed which in a way it is.

However, what is not always appreciated by some employees is that an employment is an arrangement in which wages are paid for services rendered.

The obligation of the employer is to pay the salary and other benefits. This is to be reciprocated by the employee performing in the role entrusted to him.

Health problems

So what happens when an employee faces health problems? How long can he be away without losing his job?

The answer to this lies in the terms of the contract of employment between the employer and the employee.

As a rule, in respect of those who earn RM1,500 and below, the Employment Act 1955 provides for a minimum annual leave and paid sick leave.

The entitlement to annual leave is eight days for an employee who has worked for two years or less, 12 days for those who have worked for less than five years, and 16 days for those who have worked beyond that period.

With regard to sick leave, it is 14 days for those who have worked for less than two years, 18 days for those who have worked less than five years, and 22 days for those who have worked more than five years.

Where hospitalisation is necessary, the Employment Act 1955 provides for paid leave of 60 days.

Thus an employee would be entitled to paid sick leave for 60 days even if the employee has not been hospitalised, provided that a medical practitioner certifies that the person is sick enough to be hospitalised, even though he is not.

As a matter of practicality, those who earn more are not likely to get lesser benefits or terms.

Where an employee is entitled to paid sick leave, no difficulty arises.

The employee would have the benefit of paid leave for the number of days on which he is certified as being sick.

But in the case of a serious illness, even 22 days may not be enough.

Of course, if the employee has annual leave which he has not utilised, he could make use of his annual leave. However, this may soon be used up. What happens then?

It is at this stage that the difficulty arises.

From the point of view of the employee, he may have been a dedicated worker and performed his duty conscientiously. That he cannot work now is not his fault. It is because he is sick that he cannot perform.

However, on the part of the employer, it is a business that is being run. Work must be done to generate income so that operating expenses can be met and profits made.

The employer has engaged the employee to assist in this regard. He pays for the employee’s services with some provisions made for rest days and sick days.

If a stage is reached where the employee can no longer perform his basic obligations, then a point has been reached where the employer-employee relationship can be brought to an end with no further obligations either way unless otherwise provided.

What options

Such a scenario is not a happy situation for an employee.

Any further rights would depend on what has been contractually agreed.

In ordinary situations, when an employee takes up employment, such eventualities are seldom thought through.

One possibility is to incorporate a term in the contract of employment to allow an employee further unpaid leave for a certain period of time. It could be six months or one year, or for that matter less or more.

Such a provision could mean that the employee will not be paid during the period of such extended leave.

However, he knows he would be able to go back to his job when he recovers. Whilst recuperating, he will have the comfort of knowing that he has a job to go back to.

However, such terms in an individually negotiated contract of employment are rare and unlikely to be incorporated.

This is because in most ordinary situations, the employee is not in a position to bargain.

On the other hand, the employer also has to ensure consistency in relation to other employees.

The existence of such clauses is more likely in the case of collective agreements negotiated by unions.

Here there may be provisions for more benefits for the employee or alternatively better exit terms.

Conclusion

Of course, even where there is no such clause, there is nothing to prevent an employer from granting extended leave to an employee on a no-pay basis or reduced pay basis.

Thus beyond the contract the employee is on his own.

Providing for such a situation becomes a welfare need which the state can look into. This does exist to some extent in different forms.

Finally, the situation is a reminder of the need to take care of one’s health and to make adequate financial provisions to deal with such an eventuality when it arises.

- THE STAR