Umakanthan53
Labour Law & Hr Consultant
Nagarkar Vinayak L
Hr And Employee Relations Consultant
Vmlakshminarayanan
Sr.manager - Hr&admin
Cma1984
Hr Head
Murtybd
Hr Professional

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One employee is on leave from more than three weeks, employer is helping in all possible way and releasing salary without any LWP, but now business is suffering because of his absence. And still there is no chance to resume his duty in next two to three weeks.
What kind of right employer have in this case, can they ask employee to put down his paper or fire the employee?
Need appropriate suggestion considering Indian Law.
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 and based on its expert opinion, he can medically invalidate him and terminate his services once for all. But, 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 little more patience? To avoid work losses, consider appointing a suitable substitute temporarily for some time and to avoid additional expense in this regard, treat the absence as 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 employee is on sick leave for more than three week and employer is releasing salary without any loss of pay, which shows that employer wants to help the employee either based on performance or to safeguard statutory interest?. In the absence of sufficient leave balance, his period of absence may be considered as break-in-service. Please collect a letter to that effect from the employee with proof of illness. Please ascertain as to when the employee can resume back to work. Employer can be lenient as the reason for absence is genuine.
How you are justifying your statement " business is suffering because of his absence" ? Is that particular employee is playing such crucial role ? or in decision making role ? Not sure. Whatsoever it may be if the employee is physically fit to carry out the task you cannot force either to join or submit resignation.
However if the absence is going to be for prolonged period say more than a year or so then employers stand on " business suffering because of of absence" may be justified to some extend.

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,
Dear colleague,
To me this is a case which does not warrant taking any serious action at this stage.
Any absence for as long as 1to 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 businees gets affected by somebody's absence. In this situation , businesses have back up arrangements.
You already have shown 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 my treat it as LOP but it certainly does not merit separation from service at this stage.
Regards,
Vinayak Nagarkar
HR- Consultant.

Want to clear my statement , that we are in service based IT industry and raised invoice to our client on hours spent by our employee for that project.
And from last few weeks because of his sickness he is not bale to come to office so we are not raising any invoice to our client for that employee. This is our business loss.
And still it looks that employee will take another two to three weeks to resume duty.
We have adjusted his all balance paid leave to him and even paid him for his sickness on humanity ground, but on other hand we have to run business also.
Agreed that we will wait for another two to three weeks.
But my query is that legally how much we will wait ? Is there any clarification in Indian labour law.
Request to guide .
Regards
Vivek Kumar Singh

It depends on the position one is holding, if it is a HOD Position, then a max of 3-4 weeks medical leave can be granted , there is no specific law on these matters but as a prudent company , organization has to think both in terms of smooth company's transactions as well with a human approach to the issue. if the leave is continued and company finds it genuine, then he can be shifted to another area where company can bear his absence for a little long time . company cannot be put to business loss becoz of an employee's inability to attend duties, whatsover is the reason, hope all HR guys agree !!
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