Called in sick and on vacation, is that possible?

The vacation season is upon us again. A nice prospect, but what if your employee is reported sick and still wants to go on vacation, is that possible? Yes, even if an employee is sick - with wages continuing to be paid - you have the right as an employee to go on vacation. Of course, do coordinate the vacation period.

Engage company doctor when in doubt

Should there be any doubt as to whether it is responsible for the employee to go on vacation, the question can be submitted to the company doctor. He/she can give a ruling on whether there are medical objections to the proposed vacation and whether the vacation will be detrimental to (the recovery of) the employee. If so, the employer may refuse the vacation request.

Deny vacation

Refusal is allowed only if the vacation may interfere with the employee's recovery. For example, consider an employee who has back problems and wants to go on a ski vacation. If the employee becomes ill during the vacation, his vacation days are converted into sick days. The days on which he is sick then do not count as vacation days. The employee can take them again later.

Notice:

As an employer, you are required - as always - to respond to the written request for vacation within two weeks. If you are late, the employee's vacation request is automatically approved. A response does not have to be a definitive yes or no; you can also indicate that you want to wait for the opinion of the company doctor.

Totally incapacitated

If an employee is totally incapacitated for work, which means he is not performing reintegration activities, you cannot write off any statutory vacation days from his vacation day balance. You classify the days when the employee is on vacation as sick days. After all, the purpose of a vacation is to recover from work or reintegration obligations. However, a sick employee who is partially reintegrating must take vacation days. He takes those vacation days over his entire working hours; if he normally works eight hours a day, he takes eight hours.

The following scenarios may apply:

• Is an employee totally disabled? No leave days may be written off (unless the employee explicitly agrees).
• Is an employee partially disabled? One day of leave intake counts as a whole leave day. So not as half a leave day and half a sick day.

Continued payment during a vacation day

If the employee agrees to let you designate a sick day as a vacation day, he is entitled to his full pay for this day. You cannot then pay any lower wages (that the employee receives during long-term disability). Even if the sick employee leaves employment and wants his vacation days paid out, he is entitled to his full pay for these days.

Resume

On vacation hours, the employer - even if accrued during illness and taken or paid out - must pay the employee's full salary.

What about accruing and taking vacation days during illness?

Disabled employees are entitled to full accrual of vacation days. The regulation on full vacation accrual during illness applies only to statutory vacation days. An employment contract or collective bargaining agreement may contain other agreements on any excess vacation days.

Writing off vacation days

Extra-legal vacation days are time-barred after five years. Statutory vacation days must be taken by the employee within six months of the end of the calendar year. Does your employee not take his legal vacation days within the time frame? Then they expire.

This six-month limitation period does not apply to sick employees who are not reasonably able to take vacation in a timely manner. In that case, the statute of limitations on statutory vacation days is also five years. To determine whether an employee is reasonably able to take vacation, we look at whether or not he can reintegrate. Is an employee performing reintegration work? Then he is not 100% unfit for work. The starting point is then that he can take vacations.

Learn more about reintegration and work disability

Would you like to know more about the rights and obligations surrounding reintegration and work disability? Then feel free to contact us for more information.