How Should We Handle Termination for an Employee on Extended Medical Leave?

Termination Process for Extended Leave

One of our employees has taken leave for more than three months due to illness, and now he is requesting an additional two months of leave. However, our management has instructed me to terminate the employee. Could you kindly explain the termination process in this case?

Thank you.

Regards,

If an employee is on authorized leave (approved leave), then their service cannot be terminated. To terminate their service, you should have documents to prove that the concerned employee is on unauthorized leave for 3 months.

Regards,
Kamal

True. If an employee is on leave on medical grounds and has all the relevant documents to prove it, and has informed the immediate supervisor and HR, then he is following the right path. However, in the event that management needs to terminate him, they must first provide him with a notice to return within a stipulated time period, after which the next course of action will follow.

Thanks & Regards,
Nivedita

Get a legal opinion on this. You cannot terminate the employee if he has all the documents in place. You can ask him to go on loss of pay as the leaves he was entitled to would have already been exhausted. Also, you can discuss with the employee and terminate him. But for that, his supervisor needs to ask him to come to the office and should not approve the leaves. Once he fails to report to the office, you can put him under unauthorized absence and terminate him on disciplinary grounds. But before terminating, see if you can get him to resign.

Regards, Adarsh

Dear All, This is a different scenario altogether. First of all, you cannot terminate any employee just for being ill, as it is rightly said by Nivedita that the employee is on the right path. Even if you terminate him, he will get reinstatement from the Labour Court. So, terminating him straight away is never an option and may only drag the Management into unnecessary litigation, which will lead to legal expenses, and the Management would end up paying even more.

There is one provision in the Industrial Disputes Act which is given below.

section 2[(oo) “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include—

(a) voluntary retirement of the workman; or

(b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or

2[(bb) termination of the service of the workman as a result of the nonrenewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or]

(c) termination of the service of a workman on the ground of continued ill-health;

There is the provision, but to invoke this, you have to first apply before the High Court to get permission to terminate the employee. This will refer the employee to a Medical Board, which will examine him and give its report to the Court. If in that report it states that he is so sick that he is not able to recover in the near future and will not be able to perform his duties normally, only then will you get permission from the Court to terminate the employee. In the given case, it is only three months since he is sick. Please see whether he is in a position to recover or not. Do not terminate him if he may recover from his illness after two months. Ask him to deposit his medical documents and seek medical advice if necessary before choosing any option.

The best option available with the Management is to put him on leave without pay and let him resume services on recovery. Ask him to submit the copies of his medical records and a certificate of fitness from the doctor. You may also ask to provide the medical certificate from the doctor during the period of illness.

Terminating such an ailing Employee is not correct morally and legally. We should not support this kind of labour practice.

Hope this will answer your query. For any further query, feel free to revert or call me.

I'm sure that you would be in the HR department, so it is your duty to inform the management that what they are doing is not correct. Terminating an employee when they are sick or ill is illegal. Mr. Kamal Kant Tyagi has provided all the necessary information and references to relevant Acts for your better understanding. You can use this information to approach your management and advise them against such actions.

Make sure that in this case, you stand by the employee. All the best.

Thank you very much to you all for the immediate reply. I checked with my management, and he has already taken leave without pay for the past three months. He requested leave for another two months. However, the management did not accept the leave and informed him to either return to the job or resign. The employee did not accept either option.

Please let me know if you need any further assistance.

Kindly do not let employees fall prey to management practices. Make your bosses understand that the options they are providing suit the concerned employees and not just the management. He is not in a position to come to the office, and he cannot be forcefully asked to resign either. Management will have to follow the steps mentioned by Kamal Kant Ji.

Thanks & Regards,
Nivedita

I don't think an employee can be terminated solely because of ill health. Moreover, an employer cannot approach the court straight away for the termination of an employee. If you feel the employee is medically unfit to work, then you can ask them to appear before a medical board for a complete examination. If the employee is covered under ESIC, such an opinion can be easily obtained from the board. Based on the board's recommendation, you can initiate action against the employee.

Furthermore, check your standing order to see if the termination of an employee based on ill health is specified or not. If it is specified, then you can take appropriate action based on the certified standing order.

Regards, V. SRI

But to understand the problems of Hemavati, she needs to provide workable solutions to her employer. In a competitive business, the absence of such longevity is not acceptable as it hampers services and production.

Therefore, the best practice would be to ask the employee to appear before the company's doctor or a doctor arranged by the company if the company does not have a panel of doctors and get them examined. Ensure that you have a document regarding the employee making false claims and enjoying leave. Issue a charge sheet based on false claims of sickness, hold an inquiry, ensure that the doctor who examined the employee remains present to testify in the inquiry, record the inquiry proceedings and findings. Follow the process required in domestic inquiries and impose the punishment of termination or dismissal. Remember to highlight the absence of the employee on false grounds and the production of fake documents related to employment.

The above procedure is required if the employee is a workman. Otherwise, simply give a notice of 1/2 months or salary in lieu of notice, based on the terms of employment, and issue a termination simplicitor. If you are in the public sector or government, then you need to strictly follow the service codified rules of the company.

Good Luck,

Ashok Naik

If he has taken medical grounds falsely or intentionally to gain an advantage, you can follow the procedure below:

- Reject his leave request.
- Ask him to produce medical documents of treatment/certificate.
- Instruct him to appear before a medical board suggested by you.

Once the actual facts come to light, take appropriate action accordingly.

I fully accept what Kamal Kant has suggested. Let us speak in favor of the employee rather than the employer. Moreover, the employee has not committed anything intentionally. I stand by the employee - Principles of Natural Justice.

Guys, the question asked by a friend was not different. Nowadays, most companies' Managing Directors sing the same tune when it comes to sacking employees for irregular attendance. In HR, such methods cannot be employed on an employee without a relevant reason. Here, the HR's duty is to make the management understand and discuss the employee's conduct record, rules, methods, and ways of treating employees. This doesn't mean that HR is against what the management prefers. HR has to handle situations appropriately.

Regards,
Praveen
HR Manager
[Phone Number Removed For Privacy Reasons]

It is an unethical practice in a company, and you should not join this type of practice unless you have to. Tell the management to reconsider their decision.

Thank you.

Procedure for Terminating Employees Submitting False Medical Certificates

Adopt the procedure of terminating employees who submit false medical certificates.

Regards,
Ashok Naik

You can't get any better thoughts than those provided by Mr. Kamal, Ambattur, and Shah. They bring perfection to the table. Of course, we will also consider input from others. In this scenario, if you can't retain him, you must write to him to express appreciation for his invaluable contributions to the company. Ensure he understands the current situation within the organization and the issues surrounding him.

Inform him that both the HR department and management will review his application should he reapply to the company in the future, once he is ready.

If all these strategies fail to address the issue, you can request a fitness certificate for him to continue his service with the organization. If he complies:

- He might be lying.
- The certificate could be false.

If he fails to provide the certificate promptly, send him a retrenchment letter along with three months' salary upon his acceptance. If he refuses to comply, seek guidance from the legal counsel of the company and the labor inspector.

Regards,
Ravi S. S.
Email: [Email Removed For Privacy Reasons]

You can terminate the employee only if he will not be able to perform in the future or is medically unfit to do his duties. You should have proof for the same. If there is, you can terminate the employee legally.

Regards,
Ajay Padnekar
[Phone Number Removed For Privacy Reasons]

Dear Respective,

The replies made by Nivedita, Adarsh, Kamal Kant, Archna, and V. Sri are appropriate and informative. Thanks a lot for the insights. In the context of illness, the employer cannot terminate an employee. There are special provisions under the Factory Act, Industrial Dispute Act, and Maternity Benefit Act that prevent the employer from terminating an employee due to illness. It may be possible to stop payment for the period the employee did not work. If the employee has complete documentation proving illness or sickness, such as advice from a doctor for bed rest, the employer cannot terminate them. If termination occurs, legal action can be taken.

For critical illnesses, an employee is entitled to leave without prior notice, but within 10 days, the company must be informed by the employee's family of the situation causing the employee's absence. If an employee is on continuous leave for more than two months without informing the company, the employer will send a show-cause notice to the employee's address, requesting a reply explaining the cause of absence within 10 days of the notice being issued. If the employee's response is satisfactory and supported by documentation of the absence, the employer cannot terminate the employee due to illness.

Thanks and Best Regards,

In spite of helping the employee, management wants to terminate him. Is it justified? If there is a need for a person, they can keep another person for the time being.

Regards, Hari Chand

Terminating an employee for their illness cannot be warranted. You can ask them to come to the office to provide necessary papers in support of their claim of sickness. You can also have them examined by your company's medical practitioner or a qualified doctor. Upon reviewing the report, only then can you propose any action. If your management is adamant about terminating them and you follow their advice, be prepared to face legal consequences.

Regards,
Balaji

Dear Hema,

Often, it has been found that an employee proceeds on leave using his sickness as a tool to substantiate his illness. It may be genuine sometimes, and on the other hand, it may be for other reasons, such as alcoholism, etc. Now, being in HR, we have to tackle these problems as continuous absenteeism leads to an overall adverse effect in the relevant department.

Initially, try to find out from other employees and verify his past records. If he is a chronic absentee, then send him a letter asking for his medical records. Kindly ensure that he produces the record from a Registered Medical Practitioner, i.e., an MBBS doctor or an MD doctor. The history will itself depict the true story of his illness. Even if there remains a doubt about his certificate, then refer him to a medical board and get him examined.

If the medical board certifies him to be fit, then first register a complaint against the doctor issuing the medical certificate with the Medical Bar Council. Ask the employee to join immediately, clearly stating that his leave is not sanctioned, and he has to report for duty immediately. If he does not report for duty, then issue a charge sheet and hold a domestic inquiry and then terminate him.

This advice pertains to an employee who is guided by the terms and conditions of employment and standing orders, i.e., a unionized employee. For an employee who is in the executive cadre and who is guided by the terms and conditions of employment, issue him a termination letter in terms of the clause of the employment offer with one month's notice pay.

Hope the above will satisfy your query.

Regards, Jaikishen Kumtekar

[Phone Number Removed For Privacy Reasons]

Dear Hem, as V. Sri said, you have to examine your leave rules along with the Standing Orders to determine whether such leave is permissible as per your service conditions. Additionally, as an extra precaution, ascertain through some sources whether his illness is genuine or not. If the information collected differs, you may issue a notice to report for duty within a reasonable time. If not, ask him to appear before a duly constituted medical board. Then consider the next course of action.

Before initiating a termination decision/process, you must carefully exhaust all reasonable avenues to justify the termination process. In other words, plug all legal loopholes that are likely to go against your termination action. Explain how his absence in the organization has seriously affected your operations and why you are compelled to initiate termination and seek a replacement to fill the void created by him. However, also examine the situation from the perspective of compensation that is likely to arise.

Regards, Kumar Bg.

In case an employee is deliberately giving a false medical certificate, an employer can convene their own medical board and declare the employee unfit to perform their duties. The employer must provide valid grounds for this decision, based on the recommendations of the attending doctors, the nature of the illness, etc.

If the employer can prove in a court of law that the employee is physically unfit to perform their duties in the near future and that the company would suffer financial losses as a result, the employee's challenge against their termination in court can be dismissed.