Long-term ESIC Leave: Do I Need to Keep This Employee on My Payroll? Seeking Advice from HR Peers

Dear Seniors, I have an employee who is sick with a serious problem. He has been on ESIC leave for the past 2 years. Do I have to compulsorily keep him on my payroll? I don't mind him receiving the ESIC facilities, but the issue is that he is considered in all calculations. What are my rights in this regard?

Please refer to Sections 72 & 73 of the Employees' State Insurance Act, 1948. Please also refer to Regulation 98 of ESI (General) Regulations, 1952. I hope that in the circumstances mentioned by you, the above provisions of the Act/Regulations will be helpful to you in making an appropriate decision in the matter.

ESIC Act: Employer Obligations During Employee Sickness

The ESIC Act states:

73. Employer not to dismiss or punish employee during period of sickness, etc. — (1) No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit. Nor shall he, except as provided under the regulations, dismiss, discharge, or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement, is under medical treatment for sickness, or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of pregnancy or confinement rendering the employee unfit for work.

Based on this, I think you cannot dismiss him from duties while he is on ESIC sickness leave.

Are you sure the employee is really sick? Did anybody from management visit the employee, as a matter of courtesy as well as to check on the fact?

If you have a manpower problem, hire a person of equal caliber on a temporary basis. Also, ask the ill employee if they would like to continue.

You can't terminate or remove his name from your Company Muster Roll when he is under medical leave from ESIC. Before going to remove his name from the Muster Roll, please thoroughly review the below sections of the ESIC ACT 1948.

Section 72 of the Act

Section 72 places a bar upon the powers of an employer with regard to the reduction of wages of an employee for reasons of his liability to pay contribution.

Section 73 of the Act

Under Section 73, an employer cannot dismiss or punish an employee during the period of his certified sickness, etc. Contravention of these provisions attracts penalties provided under Section 85 of the Act.

Regards,
Musa S

In case a person is availing benefits on sickness grounds, no action for termination or abandonment can be initiated. However, if the employee concerned appears to be taking sick leave on fabricated or manipulated grounds, such cases can be referred for examination by the Insurance referee of ESIC. Please send your complaint to the relevant Regional Office for further review.

Regards,
P K Sharma

There is no limit to avail the ESIC leaves. For verification purposes, you can follow the guidelines below:

- ESIC will issue an unfit certificate. They are issuing a maximum for one week.
- No need to pay salary; make LOP for the concerned leave period (including Sundays and holidays).
- ESIC will pay the salary as per ESIC rules.
- At the time of joining, ask for a fitness certificate.
- If you have any doubts about the fitness certificate issued by ESIC, the employer can contact the ESIC commissioner of the region and file a complaint for re-verification.
- The employee or his relative has to submit the unfit certificate to the company every week.

Thank you.

Regards,
Ashish

Apart from what seniors have advised, I fail to understand what the major sickness is that cannot be cured for the past 2 years. Have you obtained the Unfit Certificate from the concerned authorities? Kindly visit the employee, as I think there may be some flaw.

Regards

One of our employees who was in a warning period due to poor performance is undergoing ESI leave due to an accident. Our management is not interested in continuing his employment and needs to relieve him urgently. However, the employee needs more than one month of leave to become fit for employment. As an HR officer, how can I handle this?

Dear Remya,

Is it an accident while on duty? Off duty? You have admitted that the employee is on ESI leave. Your management is proposing to relieve him urgently. The question of relieving arises if an employee has tendered his resignation. Has the employee tendered his resignation? What is the designation of the employee? What is the present gross salary? Please keep your action in abeyance until the employee is fit as per the medical certificate.