Should plastic surgery patients be entitled to sick leave benefits ? - 2/8/2007

link Article 01 in The Times - GWU stand

link Article 02 in The Times - Employer's stand

link Article 03 in The Times - Editorial

GWU demands ruling on sick leave entitlement
Cynthia Busuttil

A number of patients suffering from sun burn, sports injuries, period pains or morning sickness have been denied sick leave by their employers.

Some patients recovering from cosmetic surgery were also informed they were not entitled to sick leave, the General Workers' Union said.

The union is stressing that once a doctor certifies that an employee is sick, the employer or manager cannot refuse authorising sick leave.

A GWU spokesman told The Times that although it does not keep records of such complaints, a number of section secretaries reported they have come across such problems, with the manufacturing sector receiving the highest number of complaints. "The employees would not be considered unwell and so lose out on sick leave rights and benefits," the GWU said.

The union has written to Industrial and Employment Relations Director Noel Vella, asking him to rule that employees are entitled to sick leave whenever they are certified unwell, even if the certificate is issued by a family doctor, irrespective of the cause of the illness.

When contacted, Dr Vella pointed out that the law lays down that a person is awarded sick leave when he is incapable to work. He said a doctor has the responsibility to judge whether an employee is capable to work or not.

The union said it was in contact with the Malta Employers' Association and the Medical Association of Malta to discuss the issue and find a practical solution.


Talking point
Not at the employers' expense, please!
Joseph Farrugia

The recent pronouncements by the General Workers' Union about sick leave entitlement and the role of the company doctor have raised justified concerns among employers. There is no uniform legal entitlement to sick leave. The Employment and Industrial Relations Act carries no mention of sick leave, and the dozens of different wage regulation orders provide for diverse entitlements depending on the sector. As things stand today, an employee whose work does not fall under any of the classifications of the Wage Regulation Orders and who is not covered by a collective agreement is, strictly speaking, not entitled to any sick leave.

However, normally, contracts of employment will specify some form of sick leave entitlement, and even where a contract of employment does not exist, employers do provide for a minimum sick leave benefit.

Therefore, there is no question that employers do endorse the view that sick leave is a right and it is part of their social responsibility to carry a part of the burden of sick leave (the first three days of consecutive sick leave are paid in full by the employer, for instance). It is also their duty to ensure that the work environment minimises the risk of ill health to employees.

However, employers cannot be reasonably expected to entertain claims for sick leave that do not arise from an illness, disease or accident, nor to waive their right to verify sick leave before they pay for it.

A clear case in point is the increasing trend to undertake cosmetic surgery. Granted, in some cases, this may be necessary because of previous injury, or else to address a deformity that is also causing psychological or physical suffering to the employee. In all such cases I have come across, employers have granted paid sick leave during the recovery period to employees requiring such interventions, often beyond legal and contractual obligations. On the other hand, it is unreasonable to demand that similar treatment be extended to employees who voluntarily decide to undergo a process of self mutilation to look like a Hollywood icon.

The same applies to cases of self-inflicted illness or injury. Should an employer pay for sick leave arising from sunstroke, or post-weekend hangover? Why should a company carry the cost of repeated absences resulting from injuries suffered during the practice of dangerous sports? Isn't the employer penalised sufficiently for such negligence through the cost of foregone production?

Unfortunately, the company doctor is a necessary cost to reduce sick leave abuse. It is a fact that private doctors cannot always be trusted to exercise objective judgement in determining whether an employee is fit for work or not. How can one justify certification for absence that follows a clear pattern, or seasonal fluctuations in sick leave that coincide with the hunting season? In the vast majority of cases, the conclusions of the company doctor correspond to those of the private doctor, and the company doctor acts as a deterrent against abuse of sick leave. However, cases do emerge where employers refuse to pay for sick leave that is not certified by the company doctor. This right is entrenched in numerous collective agreements and should be retained.

Abuse of sick leave benefits also acts against the interests of honest co-workers who frequently have to deal with an added workload to make up for lost production. This is one reason why it is expected of trade unions to support any measures to curb abuse, while protecting the employees' right to fair treatment.

So yes, anyone can aspire to have Carmen Electra's looks or act like Jackie Chan. But, please, not at the employers' expense.

Mr Farrugia is director general of the Malta Employers' Association
When to pay for sick leave
The General Workers' Union is correct in calling for guidelines from the Department of Labour and Industrial Relations about what constitutes an illness that qualifies workers for sick leave. This has been a long running area of disagreement between workers, employers and trade unions.

At the core of the issue is whether employers should have to pay for sick leave when workers suffer avoidable injuries while not on duty. Should an employer have to foot the bill when a worker suffers sun stroke as a result of a day at the beach? Should it be the worker who faces the consequences when a worker injures himself at sports?

The issue then gets more complicated. Should a worker be eligible for sick leave for, say, teeth whitening or should that procedure be followed during ordinary days off? What about other more complex forms of cosmetic surgery?

Legislation does not define sick leave but says that a doctor must certify that a worker is unfit to work.

Employers pay for the first three days of sick leave and compensation is subsequently shared for a period of time by the Department of Social Security and the employers. Employers have a right to send their own doctor to check on workers reporting sick.

Some collective agreements lay down conditions under which a worker is excluded from sick leave, such as injury from extreme sports.

The GWU said it has, for a long time been trying to obtain the agreement of managements about the removal of certain clauses in some collective agreements and has been resisting the insistence by management that certain situations should not qualify for sick leave, such as sunstroke, injury off work and, in the case of women, period pains.

Pointedly, the word used by the GWU has been "guidelines". It knows full well that medical conditions vary as widely as jobs. Cosmetic surgery, for example, can be seen as avoidable, but what if its cause would have been causing psychological problems?

A worker suffering a particular condition may not be able to work for a particular employer but would be perfectly fit for another. The union's call for talks with the Medical Association and the Malta Employers' Association should, therefore, be taken up, and ideally extended to include other trade unions.

Several European Union countries already have such guidelines and they could serve as a model for Malta to make progress on the issue. But rules in this area cannot be written in stone. What one should aim for is more consistency in sick leave certification.

The bottom line should, of course, be to eliminate sick leave abuse. One, unfortunately, hears of too many cases where workers see sick leave as an opportunity to be availed of. One also hears of complaints about company doctors acting more like policemen than doctors, or family doctors who appear to issue sickness certificates too easily. It must be said, however, that the incidence of sick leave in Malta does not appear to be higher than in other countries. Cases of conflict between company and family doctors are not too frequent either, but a mechanism should be set up to resolve them when they do crop up.

Employers know more than anyone that the best worker is a happy one. They know that excessive control can be counter-productive. But tolerating abuse is worse and would set a bad example to the whole workforce. Sick leave abuse imposes a burden on profitability and also constitutes benefit fraud.

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