Does the employee have to give notice of absence due to medical leave?

Although it is no longer compulsory for employees to provide the company with the sick leave, confirmation and discharge report, it is possible to require them to notify the company of their absence due to Temporary Incapacity. In this article, we analyse the conditions that the company may require employees to fulfil in relation to the notification of sick leave due to Temporary Incapacity.

Exemption from the obligation to submit sick leave, confirmation and discharge certificates to the company.

Since 1 April 2023, when the legislative modification came into force exempting workers from providing the company with medical leave, confirmation and discharge certificates, we have noticed that many people have come to believe that those who are given medical leave and begin a situation of Temporary Incapacity (TI) can be absent from work without informing anyone, thinking that the corresponding Health Service or Mutual Insurance Company will inform them.

This has led to numerous cases in which the company expects someone to come to work, not having been informed otherwise, and, surprisingly, without any notice, he/she does not come to work, even missing several days without giving any news and without the company knowing anything at all about the absent person.

Obviously, these situations not only produce unpleasant uncertainty, but also often cause considerable damage in terms of how they affect the company’s organisation.

Enforceability of the employer to give prior notice of absence on medical leave

In principle, staff may be required to give notice of absence due to temporary incapacity, unless this is not possible.

The Workers’ Statute establishes that labour relations must be governed by good faith, which is the basis for companies to require that, except in cases of force majeure, they inform staff in advance of the absence of attendance due to medical leave and the commencement of a period of sick leave, so that such absence affects the organisation and functioning of the employer company as little as possible.

What does case law establish in relation to the notification of sick leave by the worker to the company?

This was confirmed, a few months ago, by a ruling of the National Court, highlighting the following passage:

“And the same rejection must be given to the claim relating to the notification of the start of a TI process. See that the communication sent by the company informed the workforce that as of 1 April 2023, the obligation to provide the company with sick leave, confirmation and medical discharge reports disappears, all in accordance with the provisions contained in RD 1060/2022, of 27 December, single article, point three, which modifies article 7 of RD 625/2014, of 18 July.

The communication sent subsequently in May 2023 states that ‘(y) if it is a medical leave, you must inform the Shift Department of your work centre’. Once again, the term ‘justify’ the sick leave, which continues to be carried out by means of the delivery to the company of the corresponding report by the Public Health Services or Mutual Insurance Companies, is confronted with the term ‘inform’ of the same, in a clear intention to immediately inform the company of a sick leave process that clearly has repercussions on the organisation of work.

There is no doubt that the purpose of this communication is precisely to avoid prejudice to the latter, as the information on the start of the process must be provided to the ‘shifts department’, which is responsible for organising the shifts in order to ensure the proper performance of the duties entrusted to them. The provision derived from RD 1060/2022 is not altered in any way, and once again it is complemented with a provision that in our opinion is in line with the adequate provision of the service, without causing any harm to the worker”.

What do collective bargaining agreements stipulate on the communication of justified absence from work by the employee to the company?

So much so that there are collective agreements which, in their disciplinary regime, expressly contemplate sanctions for this lack of notice, as long as it could have been reported.

For example, the state-wide Collective Agreement for the Contact Centre sector, precisely the one analysed in the aforementioned judgment, considers the failure to give prior notice of absence from work for a justified cause (which would include the conduct in question) to be a minor offence.

Also, the Labour Agreement that regulates labour relations in the hospitality sector throughout the country (ALEH VI) includes as a minor offence the failure to inform the company as quickly as possible of the fact or reason for the absence from work when it is due to temporary incapacity or other justified reasons, unless it is proven that it is impossible to have done so.

Recommendations in relation to sick leave due to Temporary Disability

We consider it advisable to inform all workers that, when they are on sick leave, they should inform (but not hand in a copy of the sick leave report) that they will be absent from work because they have been recognised as being temporarily incapacitated.

Instruction or order which, if approached correctly, a priori, we understand that it fits in practically any business organisation, based on its organisational needs and the good faith that should govern labour relations.

Of course, all of the above is without prejudice to the fact that each case is unique, and this is how we treat it at DEVESA, and there may be exceptions that must be approached in a different way or according to particular circumstances.

Likewise, when it comes to sanctioning non-compliant staff, it should be analysed with caution, and it is advisable to consult an expert in the field, as there is currently special sensitivity with everything related to Temporary Incapacity. Do you need advice? Access our area related to the obligatory nature of the communication of sick leave due to Temporary Incapacity:

Labour Law