The Sickness Pay Act is supposed to protect employees who are unable to work because they are sick. In 2009, the law was amended so that an employee cannot be fired while he is sick and as long as he has accrued sick days. In 2015, the law was further changed so that the cause of the disease no longer appears in the confirmation of the disease.
“From the moment an employee cashes in to the hearing, it has become a clear and understandable thing that he will spend sick pay and this can even reach 90 days in some cases. Although you need a medical certificate, it is not that complicated. At least for the first few days, you just go to the health insurance website and get a certificate. The employers For their part, they receive an official medical certificate from the health fund, without detailing the reason, and cannot fire the employee. Basically, as long as the employee is on sick days, it is not possible to send a layoff notice,” explains attorney Keren Maimon, a partner in the labor law department at Sheblat Co.
While days off must be approved in advance with the employer, sick days of course do not require prior approval. In addition, unlike vacation days, there is no redemption of sick days at the end of employment, so unused sick days are simply lost. When you add to this the ease of issuing sick certificates, it is easy to understand why there are employees who would prefer to use all their accrued sick days as soon as they know they are facing layoffs.
This phenomenon has become widespread in recent years and now, in view of the waves of layoffs, lawyers who deal with labor law testify that they are encountering it more and more. “We are in the midst of a wave of layoffs. If in the past people who were fired or left the workplace quickly found another place, now people are holding on to what they have,” says Maimon.
The employers who are dealing with the phenomenon remain unanswered. As soon as there is a medical certificate, even if it is clear to everyone and even to the court, that it is a fictitious certificate, the employer must respect it. Employers have to pay for sick days, the employee doesn’t work and they also can’t move forward to hire someone else because there wasn’t even a hearing. If they continue with the recruitment of another employee, it will be considered that the hearing was illegal because the decision was made before the hearing.
Employers and lawyers say that recently there are also employees who claim that because of the invitation to the hearing they became depressed and therefore issue sick certificates. The amendments to the Sick Pay Law were made in order to protect the employees and their privacy and to optimize the burdens on the health insurance clinics, but they also created a significant relief for those who want to abuse the law: it is not required to specify in the sickness certificate what the cause of the sickness is, the certificate can be given even without the employee physically meeting with the doctor and even retroactively.
It is forbidden to fire employees during the period of accrued sick days and the ruling even expanded the prohibition so that an employee cannot be summoned to a hearing if he is sick. Although there are decisions here and there, the lawyers advise employers not to hold a hearing during illness because in any case it will be impossible to carry out the dismissal.
“In certain circumstances, even when the employee has finished using the sick days accrued to his credit, the employer is prevented from summoning him to a hearing, since this act may be considered ‘bad faith’ on his part. The sad result is that employees may, in some cases, cause the dismissal procedure to be postponed for several months And at the same time to enjoy the payment of a full wage without having to work,” says attorney Shani Ashkenazi, partner and director of the labor department at the firm Amit, Polk Matlon & Co.
She tells of a case in which her firm represented a company that reduced its workforce to the point of almost completely closing it down. The company closed all the service centers and fired all the service representatives and shift managers except for one employee who uses her sick days to the fullest and postpones the hearing call for months. “It is clear to both parties that when she returns from her illness, there will be no relevant positions left for her in the company anyway since almost all departments have been closed. Nevertheless, the company must continue to wait until she returns and it cannot act to finish her work.”
In another case, the law firm represented an international company that develops applications and employs workers in Israel. The same company asked to fire the CEO after he refused to implement the board’s policy. The same CEO responded by taking sick days and claiming that his health was fragile. He was recorded dancing at an event in which one of the company’s employees happened to also participate. “Even though he was caught, the CEO threatened to file a lawsuit, among other things, for unlawful dismissal while on sick leave. In order to avoid an ugly legal battle that could damage the organizational fabric and usurp unnecessary inputs and resources, the company had to pay him a large-scale compensation to cut off relations with him in a discreet agreement,” says Ashkenazi.
These cases did not reach the labor courts, but even in the cases that did, it seems that the employers are in a trap regarding the abuse of sick days.
A few weeks ago, the Labor Court awarded NIS 200,000 in compensation to an employee who was fired while sick. This was an employee who accumulated hundreds of sick days, and continuously gave the employer sick certificates for a period of about three months. “This is a particularly outrageous case because not only were some of the sickness certificates issued to the employee by a pediatrician, but during her “illness” it was discovered that the employee was actually spending her life. The employer who decided not to sit idly by and turned to the health insurance company with a request to check the reliability of the sickness certificates, received sharp criticism from The labor court also awarded the employee compensation in the amount of NIS 50,000 on the grounds that the request to hold an inquiry at the health insurance fund is an act of defamation,” says attorney Eran Bobilski from the labor law department at Amit Polk Matlon & Co. “The verdict illustrates the difficulty faced by employers, that even in cases where an employee is caught in a lie and is not really sick, they are powerless against him and cannot fire him without the period of illness elapses and they are ordered to pay for it.”
In another case that came to the labor court, an employee who was fired decided to take revenge on his employer and went on sick leave during the notice period during which he was supposed to perform an overlap and transfer the position to his replacement. “Also, this case in which the (adult) employee presented his employer with a sick certificate from a pediatrician, ended with a sad result for the employer: the labor court ruled that at most the employer is entitled to claim compensation due to the employee’s lack of work during the notice period and he did not find it appropriate to deny the paid sick days to the employee for his false certificates,” says Ashkenazi.
The phenomenon of abusing sick days often occurs in situations of layoffs, but there are employers who fear that employees will take advantage of sick days in any situation that is convenient for them to avoid, for example employees who do not want to work during periods of inventory counts, near holidays or in high-tech in preparation for the release of a new version of software or an app.
In cases other than termination of employment, the risk of misuse of sick days is low. Employees will not want to damage the relationship with the employer and in reality most employees do not use sick days if they are not really sick. Moreover, many employees continue to work even when they are sick to prove to the employer that they are investing or that they are not comfortable, especially when part of the work is done from home.
From the point of view of the doctors who are the ones who ultimately issue the sickness certificates, this is a burden that turns them into officials at best or police officers at worst on the part of the employer, which takes up their time and creates an unnecessary burden for them. In the draft law on arrangements approved by the government, the process of taking sick days is expected to be even easier: it will be possible to take four consecutive sick days without the doctor’s approval, but only by the clinic, and in total it will be possible to take 12 sick days a year. In the relationship between employees and employers, the latter are the stronger side and therefore protection from both the labor courts and the legislature is granted to the employees. When trying to balance the protection of the rights of the employees and those of the employers, they prefer to protect the employees – the weak side.
The employers, through the industrialists’ association, tried a few years ago to advance the day that determines the day of the invitation to the hearing so that it would not be possible to take sick days after the invitation to the hearing. It didn’t pass.
“As long as the Ministry of Health does not increase the supervision of the health insurance funds, or the legislator does not act to amend the law, for example by making it so that an employee who becomes ill only after receiving the invitation to a hearing will not receive broad protection without reservation, the phenomenon of wholesale abuse of sick days will not end and employers will continue to comply In front of a broken trough,” says Ashkenazi.