Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The World Cup is fast approaching! Over the course of the tournament, we will be publishing our own matchups, comparing various aspects of labor and employment law in some of the participating countries. In Part I of this series, we examined paid vacation and annual leave entitlements available to employees who might be taking some time off next week to enjoy the games. What about employees who are feeling under the weather and call in sick? What are the short-term sick pay requirements in some of the countries going head-to-head next week, and who pays for it?1
Belgium vs. Canada (November 23)
White-collar employees are entitled to receive a guaranteed salary paid by the employer during the first month of work incapacity because of illness (other than an occupational illness) or an accident (other than an accident at work or an accident on the way to or from work). Thereafter, the health insurance organization will pay the incapacitated employee an illness and disability allowance.
Guaranteed salary is not due, however, if the employee becomes newly incapacitated due to the same illness or accident, within 14 days after a first incapacity to work that entailed the payment of guaranteed salary (except when the doctor certifies that this new incapacity is different than the preceding incapacity or when the employee did not receive the guaranteed salary during the maximum period for the preceding incapacity).
By contrast, during the first month of work incapacity because of illness (other than an occupational illness) or accident (other than an accident at work or an accident on the way to or from work), blue-collar employees are entitled to the following payments (which result in providing the blue-collar employee a guaranteed salary for a period of one month, equal to the net amount of salary that the employee would have received if he had continued to work):
- During the first period of seven days of incapacity to work: 100% of the gross salary paid by the employer.
- During the second period of seven days of incapacity to work: 85.88% of the normal salary, which will be paid by the employer.
- On the 15th through the 30th day of incapacity to work: 25.88% of the part of the normal salary not exceeding the salary limit that is considered for the calculation of the indemnities of the health insurance, which will be paid by the employer; plus 85.88% of the part of the normal salary exceeding this salary limit, which will also be paid by the employer; and additionally, 60% of the gross salary paid by the health insurance.
Afterwards, the blue-collar workers will be paid an illness and disability allowance by the health insurance organization. Entitlement to the abovementioned amounts only applies if the employee has a seniority in the same company for at least one month without interruption.
Sick leave is generally not a legal requirement in Canada; however, employment contracts often provide some form of short-term sick pay as a contractual benefit.
For eligible employees who are temporarily unable to work due to illness or injury, there are several government programs in place to provide payment, including:
- Provincial workers’ compensation schemes to provide pay during absences due to occupational illness or injury.
- Federal Employment Insurance program, which provides benefits to Canadians who are suffering from long-term illness, are pregnant, caring for a newborn or adopted child, or caring for seriously ill family members with a significant risk of death. The premiums that fund Employment Insurance are funded by the employer and employee and are calculated based on a percentage of an employee’s “insurable earnings” obtained from Canadian employment.
Netherlands vs. Ecuador (November 25)
Employees who become incapacitated for work will remain entitled to continued payment of their salary for a maximum period of 104 weeks (i.e., two years) or, if the employment contract is terminated on an earlier date, until the termination date of the employment contract.
The following conditions apply to continued payment of wages during incapacity for work:
- During the first 52 weeks of incapacity for work: The statutory minimum obligation for the employer to continue payment of the employee’s salary amounts to at least 70% of latest gross base salary on the understanding that the continued payment may not be less than the applicable minimum wage (even if this amounts to more than 70% of the latest gross base salary). The base salary does not have to be observed to the extent that it exceeds the maximum daily wage.
- As of the 53rd week up to and including the 104th week (second year) of incapacity for work: The employee remains entitled to 70% of latest gross base salary. The base salary does not have to be observed to the extent that it exceeds the maximum daily wage. There is no minimum wage payment applicable to the second year of incapacity.
Usually, employers continue payment of 70% to 100% of the employee’s most recent gross base wage during incapacity for work (without limitation to the maximum daily wage). Furthermore, collective labor agreements may include additional agreements concerning continuing wage during incapacity.
With regard to temporary agency employees, the rules concerning sick pay deviate. Mostly the employment contracts of these employees contain a so-called agency clause, which enables agencies to end the contract once the employee gets sick. In 2020, the Appeal Court of The Hague ruled that invoking the agency clause during illness conflicted with the prohibition to terminate during illness. It was expected that, consequently, the legislator would explicitly forbid invoking the clause during illness or that agencies would no longer dare to invoke the clause during illness. However, the clause is still used in practice and included again in the most recent collective labor agreement for temporary agency workers.
When the temporary agency employee has been working for the agency for at least 78 weeks, such a clause is no longer applicable and the employee will be entitled to sick pay, paid by the temporary work agency.
In the case of workers registered with the Ecuadorian Institute of Social Security (“Instituto Ecuatoriano de Seguridad Social” or IESS) who meet the minimum contribution period to benefit from the sickness benefit (six uninterrupted monthly payments prior to the month in which the sickness occurs), the employer is required to pay 50% of remuneration during the first three days of disability (as a result of illness). From the fourth day of unfitness for work, the IESS will pay the worker a subsidy for a period not exceeding six months.
The subsidy to which the worker is entitled when the illness causes unfitness for work will be paid in percentages, as follows:
- For the first 70 days of unfitness: they will receive 75% of the average of wages from the 90 days prior to the month when unfitness occurred.
- 66% of this same average is paid for the remaining period.
During this period, the employer will not have to pay any additional remuneration, except for any that is outstanding, such as applicable commissions or bonuses.
If the worker does not have access to IESS coverage, the employer is required to pay 50% of remuneration for up to two months.
England vs. United States (November 25)
There is no statutory right for employees to be allowed off work when ill but a refusal to allow an employee to remain off work, provided there are no grounds for suspicion, would likely breach the implied term of trust and confidence. There may however be a contractual right (either express or implied through custom and practice) for such time off.
However, England is one-nil to the United States at the federal level in that there is a national statutory sick pay scheme. The Statutory Sick Pay (SSP) scheme entitles qualifying employees who are incapable of doing work because of illness or injury to receive a minimum weekly payment. SSP:
- is paid by the employer (subject to deductions for income tax and national insurance contributions) as with normal pay.
- is payable to eligible employees for 28 weeks at a rate determined by statute after the first three days of sickness absence – as of April 6, 2022, the weekly rate is GBP 99.35 (approximately USD 114.76 at the time of writing).
- eligibility however begins on the fourth consecutive day of sickness absence, meaning there is no entitlement to be paid for the first three days of sickness absence (unless the employer offers more generous entitlements).
After seven days of absence, the employer is entitled to require the employee to provide medical evidence of their incapacity to work through illness or injury, this is generally in the form of a note from the employee’s doctor (general practitioner). Genuine incapacity to work from ill-health or injury would make the pass for most employers.
Many employers also offer enhanced sickness rights, usually found in employment contracts or in policy documents and staff handbooks, such as enhanced pay at basic salary and/or pay from day one of sickness absence.
In the United States, there is no generally applicable federal law that requires all private employers to provide employees with job-protected paid sick leave. Note, however, that certain federal government contractors might have such an obligation.
The absence of a generally applicable federal law has seen cities, counties, and states across the country enact their own paid sick (and safe) leave laws that require that employees accrue, or employers grant, job-protected paid leave that they can use for specific reasons. Additionally, some job-protected paid sick leave laws might apply at the state or local level depending on the type of work an employee performs (e.g., home health care), a business’s industry (e.g., hospitality or transportation), locations at which a business operates (e.g., hotels, airports), government financial assistance a business receives, or, as with federal law, if the business is a local or state government contractor or performing work or services connected to a government contract.
Although the universe of reasons employees can use paid “sick” leave is vast, and keeps expanding (e.g., a child’s school-related sporting event in New Jersey), employers could show employees a yellow – possibly red – card for using leave to tune into matches rather than turn up to work, even if a match goes into “injury” time.
Argentina vs. Mexico (November 26)
An employee who suffers an accident or illness must receive a compensation that is not less than what it would have been had the employee continued working, if the accident or illness:
- is not related to the job and is not a consequence of an employee’s intentional act;
- prevents the employee from rendering services; and
- takes place during the employment relationship.
If all the above-mentioned requirements are met, the employer must provide sick leave according to the employee’s seniority as follows:
- Less than five years of services and no family allowances: three months of paid leave.
- Five years of services or more and no family allowances: six months of paid leave.
- If the employee has family allowances: the periods are six and 12 months, respectively.
The employer is responsible for paying the employee the corresponding compensation as long as the sick leave lasts.
If the paid sick leave period is finished, and the employee is not able to resume the job, the employee has the right to save the position for 12 months, but the employer does not have to pay the employee’s salary during this period.
All employees must be registered with the Mexican Institute of Social Security (IMSS). Once an employer has registered its employees with the IMSS, the employer is subrogated by the IMSS in all benefits, economic and in-kind. The FLL limits its regulation to leaves due to:
- Occupational injuries: defined as any accident or disease to which the employees are exposed in the course of their employment, or any consequences thereof;
- Industrial accidents: defined as any organic injury, functional disturbance (whether immediate or subsequent) or death, occurring suddenly in the course of the employment or as a result thereof (that is, the place where or the time when the accident occurs is related to the employment); or
- Occupational diseases: defined as any pathological condition arising out of the continued action of a cause that originated in the employment or in the environment in which the employee’s services are rendered.
- General illness or accidents: diseases or accidents not caused by or unrelated to the employee’s job or work performance.
The leaves provided for the injuries described above, and the term they may last, according to the Social Security Law (SSL), are as follows:
Period of Leave
52 weeks (which may be extended to an additional period of 52 weeks).
Permanent partial disability
Permanent leave. Payment is through the IMSS according to the amounts established in the Federal Labor Law (FLL).
Permanent total disability
Permanent leave. Payment is through the IMSS according to the amounts established by the FLL.
The economic benefits paid by the IMSS due to general illness or accident are based on 60% of the employee’s registered salary, and they are paid as of the fourth day of absence. For work-related injuries and accidents, the IMSS pays 100% of the registered salary as of the first day.
On the other hand, the SSL establishes the periods of leave depending upon the division of the compulsory social insurance plan:
Period of Leave
Workers’ compensation insurance for job-related injury and illness
According to the abovementioned schema.
One day to 52 weeks.
42 days prior to childbirth and 42 days after childbirth. Up to four weeks of pre-birth leave can be rolled over after childbirth with prior medical authorization.
France vs. Australia (November 26)
Under French law, there is a legal guarantee of resources regarding short-term illness. An employment contract is not terminated in case of the employee’s sickness or accident, but it is suspended. Payment of compensation should be waived for the employer, as the work promised by the employee is not provided. However, a combination of two mechanisms ensures, in this case, a legal guarantee of resources for the employee:
- Benefits paid by the Social Security fund: Social Security payments paid by the Social Security fund are equal to 50% the employee’s daily income (or 60% to 80% in case of occupational diseases).
- Supplementary compensation paid by the employee: In addition, the employer must remit payment to supplement the Social Security contribution to the extent that the employee: (a) has at least one year of employment as of the first day of absence; (b) has justified the absence within 48 hours to the employer by producing a medical certificate, except if the employee was victim of terrorist actions; (c) is covered by the Social Security scheme; and (d) is receiving medical care in the E.U. territory or a member state of the European Economic Area.
The employer’s contributions must ensure that these employees receive:
- 90% of their gross salary for the first 30 days of sick leave; and
- 66% of their gross salary from the 31st to the 60th day.
Under the Fair Work Act 2009 (Cth), all employees other than casual employees must be provided certain entitlements under the National Employment Standards, including personal/carer’s leave. The leave is considered personal if taken for a personal illness or injury, whereas the leave is considered carer’s if taken to provide care or support to a member of the employee’s immediate family or household due to personal illness, injury, or unexpected emergency.
In order to be paid for personal/carer’s pay, an employee must notify the employer as soon as practicable and of the period of (expected) leave. If requested, the employee must also provide the employer with evidence for the leave that would satisfy a reasonable person.
An employee is entitled to 10 days of paid personal/carer’s leave time for each year of service with their employer, which accrue on a pro rata basis, and the employer must pay the employee at the employee’s base rate of pay. Unused personal/carer’s leave from a particular year may be carried over for use in subsequent years and does not expire. It is not, however, paid out upon termination of employment.
Belgium: Edward Carlier and Koen De Bisschop (Reliance | Littler); Canada: Rhonda Levy and Sari Springer (Littler LLP); Netherlands: Eric van Dam, Dennis Veldhuizen, and Wouter Engelsman (Clint | Littler); Ecuador: Edmundo Ramos (CorralRosales); England: Raoul Parekh, Richard Harvey, Chris Coombes, and Stephanie Compson (GQ | Littler); Argentina: Mercedes Balado Bevilacqua and Tatiana Diaz (MBB Balado Bevilacqua Abogados); Mexico: Mónica Schiaffino (Littler); France: Guillaume Desmoulin (Fromont Briens | Littler); United States: Sebastian Chilco (Littler); Australia: Naomi Seddon (Littler)
1 The information provided in this series is from our Littler International Guide, which discusses more than 90 workplace law topics in over 45 countries/territories, including jurisdictions in every region of the world. For more information on the International Guide, please contact your Littler attorney or Knowledge Management Counsel Geida Sanlate. Click here to subscribe to Littler’s Global Guide Quarterly, to receive labor and employment law updates from around the globe.