How Should We Handle Leave for an Employee with Tuberculosis Undergoing Long-Term Treatment?

Dear Professionals, I need your guidance on the case below. If an employee has a leave balance in his account (suppose 5 CL & 25 EL) but unfortunately falls ill and is diagnosed as a patient of Tuberculosis, undergoing a 9-month-long treatment (complete course of Tuberculosis) under ESIC. Additionally, the doctor has advised him to take complete rest. In this scenario, should the employee be treated as Leave Without Pay (LWP) from duty by mentioning 'on sick leave,' or should we first sanction his 30 days paid leave (25+5), with the remaining duration considered as sick leave allowing the employee to avail extended sickness benefits? Thank you for your assistance.

In this connection, please go through the attached notes on ESI benefits for prolonged sickness like TB.

There is no need to grant him LWP as he is entitled to ESI benefits as noted in the attached notes right from the first day when he reports to the ESI dispensary, provided he qualifies as per ESI rules/benefit period, and the contribution for him was paid as stipulated.

Dear Mr. Kumar S,

Thank you for your guidance, but I have a query. Is an employee eligible for ESB from the first day and will be on leave from duty? In the muster roll, should we exhaust his leave balance by marking EL/CL, or can we mark him normally as on leave? His contribution will be zero (0) in returns. Until then, he will remain on leave.

Thanks & Regards,
Anoop Kumar

Hi Anoop, of course, this is a prolonged case of sickness and rare of the rarest. I pray that he should be alright very soon and resume his duties. My viewpoint is this—of course, I hope it is right—he will have to be marked as Sick Leave. If you want to show a different classification for this type of leave, you can mark him as "ESI SL." I don't think you should debit his SL account for this spell of ESI leave (rest). This is because his days available at his CL/EL are meant to be utilized for purposes where he is not going to avail ESI benefits. If possible, he can be entrusted with any work which he can do 'from his home' that is going to be his contribution. After all, he will have the rest with ESI approved Sick Pay, and therefore, if he can, he can do this much. I hope I'm not erring on the wrong side.

I request learned members to discuss further if there are other views on the subject and share any personal experiences like this.

In this connection, please note the contents of the Supreme Court's judgment as follows:

The Hon'ble Supreme Court in The Hindustan Times Ltd., New Delhi vs. Their Workmen, decided on 14.12.1962, stated that the availability of sickness benefit under the ESI Act is not a bar for awarding sick leave. The Court considered the beneficial nature of the employment law, the ESI Act, and opined that ESI coverage had little to do with giving a worker sick leave. The judgment stated that:

"It is difficult to see, however, how the benefit that the workmen will get under this Act can affect the question of sickness leave being provided for the workmen. This Act, it has to be noticed, does not provide for any leave to the workmen on the ground of sickness."

Further, the Hon'ble Court stated that, "It appears to us clear, however, that in providing for periodical payments to an insured worker in case of sickness (sickness benefit) or for medical treatment or attendance to him or the members of his family, the legislature did not intend to substitute any of these benefits for the workmen's right to get leave on full pay on the ground of sickness."

The judgment, finally, after perusal of the leave rules of the concerned establishment, came to the conclusion that ESI coverage, although it exists for the benefit of the workman, has no relation to sick leaves.