To deal with employee on long leave due to Health issue, and now business is suffering because of his absence.

One employee has been on leave for more than three weeks. The employer is assisting in every possible way and continuing to release the salary without any loss of pay, but the business is now being impacted due to the employee's absence. Unfortunately, there is no indication that the employee will be able to resume their duties within the next two to three weeks.

In this situation, what rights does the employer have? Are they permitted to ask the employee to resign or terminate the employee's contract? I am seeking appropriate suggestions considering Indian employment laws.

Regards,
Vivek Kumar Singh

Dear Vivek,

For long and continuous absence of a workman on health grounds, the employer can refer him to a Medical Board. Based on its expert opinion, he can be medically invalidated and his services terminated once and for all. However, a few weeks of continued absence on genuine health grounds would not be a reasonably sufficient period to take such an extreme action. No medical board would declare him permanently unfit.

Moreover, the positive and humanitarian gestures of the employer mentioned by you clearly indicate the facts that the individual is a sincere workman and his present illness is genuine. So, why don't you have some more patience? To avoid work losses, consider appointing a suitable substitute temporarily for some time. To avoid additional expenses in this regard, treat the absence as Loss of Pay (LOP).

In my personal opinion, at this precarious stage, asking an otherwise sincere employee to resign would be like adding insult to injury.

Hi,

As per your statement, the employee has been on sick leave for more than three weeks, and the employer is releasing salary without any loss of pay. This shows that the employer wants to help the employee, either based on performance or to safeguard statutory interests. In the absence of sufficient leave balance, his period of absence may be considered a break-in-service. Please collect a letter to that effect from the employee with proof of illness and ascertain when the employee can resume back to work. The employer can be lenient as the reason for absence is genuine.

How do you justify your statement, "business is suffering because of his absence"? Is that particular employee playing such a crucial role or in a decision-making role? Not sure. Whatever the case may be, if the employee is physically fit to carry out the task, you cannot force them to either join or submit resignation. However, if the absence is going to be for a prolonged period, say more than a year or so, then the employer's stance on "business suffering because of absence" may be justified to some extent.

Assuming that the employee in question holds a managerial position, the answer can be found in the Industrial Standing Order. In the section Holidays and Leaves it says:
"A person employed in a shop or an establishment shall be entitled—
1. For every completed year of continuous service, to privilege leave on full pay For fourteen days
2. In every year, to sick leave on half pay for fourteen days on medical certificate obtained from a medical practitioner.
3. In every year, to casual leave on full pay for ten days
4. In the case of woman, to maternity leave in accordance with such rules as may be prescribed."
Now one must see that this particular employee has exhausted his leaves on account of CL+PL+SL. Only in such case it will be break in service. To read in full see this Drafting of HR policies in line of Industrial Dispute Standing Order
Note: Generally these are regulated by contracts in case of upper management. So one has to see the application of labour law on such issues. In case of contract law also this is beyond the employees control and In my opinion 3 weeks is not a reasonable time to call it a breach. More information is needed here.

Dear Colleague,

To me, this is a case that does not warrant taking any serious action at this stage. Any absence for as long as 1 to 1-1/2 months on presumably genuine health grounds is to be viewed as a matter of no serious concern. It is difficult to understand how the entire business gets affected by somebody's absence. In this situation, businesses have backup arrangements.

You have already shown a good gesture by granting 3 weeks' paid leave, and it would be nice to continue the same for a few more weeks. If the absence gets prolonged, you may treat it as LOP, but it certainly does not merit separation from service at this stage.

Regards,
Vinayak Nagarkar
HR Consultant

Dear Vivek Kumar Singh,

I would like to clarify our current situation. We operate in the service-based IT industry and bill our clients based on the hours worked by our employees on their projects. Unfortunately, one of our employees has been unable to come to the office due to illness for the past few weeks. As a result, we have not billed the client for this employee's hours, leading to a loss for our business.

It appears that the employee will need another two to three weeks to recover and resume work. We have allowed him to use up his paid leave balance and have also provided him with compensation for his sickness on compassionate grounds. However, we also need to consider the impact on our business operations.

While we agree to wait for the employee's return, I am seeking clarity on how long we are legally obligated to wait. Are there any provisions in Indian labor law that address this situation? Your guidance on this matter would be greatly appreciated.

Regards,
Vivek Kumar Singh

It depends on the position one is holding. If it is an HOD position, then a maximum of 3-4 weeks of medical leave can be granted. There is no specific law on these matters, but as a prudent company, the organization has to consider both smooth company transactions as well as a human approach to the issue. If the leave is continued and the company finds it genuine, the individual can be shifted to another area where the company can accommodate his absence for a little longer. The company cannot suffer business losses due to an employee's inability to attend duties, regardless of the reason. I hope all HR professionals agree!