Navigating Temporary Suspension: Legal Steps and Concerns for Employee Health Leave

Dear Sir, Madam, HR Professionals,

I am working in an auto designing firm. One of our longstanding employees has been with us for nearly 4 years. Currently, he is facing some serious health problems from last month onwards. He has now requested our management for a one-month break.

Legal Formalities and Procedures for Temporary Suspension

Kindly inform me of any legal formalities and procedures that need to be followed for a temporary suspension. I have several queries regarding the same:

1. Should the month-long leave be considered as unpaid leave?
2. Will there be any implications for his Gratuity? Can this period (leave) be counted towards Gratuity?
3. Is there a specific format for a temporary suspension order?
4. How long can the suspension order be in effect? In other words, if he does not return after 2-3 months, can we reinstate him? According to the Factories Act or any relevant legislation, what is the maximum duration that can be considered for temporary suspension until his return? Can we wait for 2, 3, or 6 months?
5. What steps should be taken if he does not return? Are there any risks associated with granting him a temporary suspension?

Please provide me with the format for a temporary suspension order.

Kindly attend to this matter at your earliest convenience.

Regards,

Vinayak Sonawane

I am not so sure if the terminology you used for the situation you mentioned—'temporary suspension'—is right. To the extent I know, the word/action 'suspension' is used more as a punishment than to give a 'leave of absence' for an extended period of time for health or any other mutually agreeable/acceptable grounds.

While I would leave it to other knowledgeable members to comment regarding the various Acts (your Points 1 to 3), the minimum you need to do from your end is to: (1) verify, (2) cross-check the medical records he is expected to submit, and, more importantly, (3) get the prognosis of his medical situation from doctors appointed by the company—meaning to check how long it would take for the treatment and the employee to come back into action. That way, you would, by and large, have the answers to your queries 4 and 5.

Moving on to Another Possibility:

What if he doesn’t join again—not because of his medical condition but takes advantage of the permission given to him for the extended leave and joins elsewhere? To pre-empt such a situation, I would suggest you have things in black and white between him and the company. This is not to suggest that the company should be ready to go legal, but to instill some fear of such a course of action if it happens into the employee. Most often, this would suffice.

However, if the employee is very straightforward, granting such a leave of absence will do wonders from the HR perspective—conveying in a direct way that the company really takes care of its employees in times of their need. In a way, you would have ensured that this employee would work in the company for a long time to come.

Regards,
TS

As Mr. Sateesh has rightly pointed out, you cannot suspend an employee to enable him to take a break from service on health grounds. The word 'suspension' is associated with the disciplinary process but cannot be used as a substitute for 'leave'. When an employee seeks the company's permission to remain away from work on health grounds, you need to grant him appropriate leave admissible to him under the company's leave policy on the production of a medical certificate from a registered medical practitioner or after getting him medically examined by the company's doctor as per your policy and on being satisfied with such a report. If such leave is to his credit in his leave account, it shall be granted with wages. Incidentally, I may mention that every employee, either in a shop or commercial establishment or factory, who puts in 240 days of service is entitled to annual leave. If he has no leave in his leave account, he may be granted leave without pay.

So far as gratuity is concerned, the period of leave availed with wages shall count for gratuity.

If he does not join after the expiry of leave and does not apply for an extension thereof, you must write a letter advising him to report for duty immediately, and if he still does not resume duty, you need to take action as per the company's rules, such as disciplinary action, etc.

Regards,
B. Saikumar
HR & Labour Law Consultant
Mumbai
Tel: [Phone Number Removed For Privacy Reasons]