Sick Leave
Related Legislation
Article 2-3 of the Minimum Special Leave Regulations, L.N. 432 of 2007
Social Security Act, Chapter 318 of the Laws of Malta
1. Does the law stipulate a minimum amount of sick leave entitlement?
Sick leave is regulated by the various “Wages Council Wage Regulation Orders” (WRO’s) issued through Legal Notices. In the absence of a WRO Legal Notice 432 of 2007 applies. The EIRA itself has no mention of obligatory sick leave.
Collective agreements and contracts of employment normally stipulate what the entitlement of sick leave for employees is.
2. If a class of employees is not covered by a wage regulation order, are they entitled to sick leave?
Legal Notice 432 of 2007 has introduced a minimum entitlement of sick leave for employees not falling under any WRO and who may not be covered by any collective agreement.
In such cases, and provided that the employee does not already have more favourable conditions regulating sick leave entitlements in his/her contract of employment, the Legal Notice grants a minimum entitlement of two working weeks sick leave in every calendar year without loss of wages, less any sickness benefit to which the employee may be entitled under the Social Security Act. This entitlement is calculated in hours.
3. What is the function of an occupational health practitioner?
The occupational health practitioner’s function is to determine whether the employee is fit for work or otherwise. The Occupational health practitioner is not authorised to prescribe medicines.
4. If there is a difference of opinion between the occupational health practitioner and the private doctor, which opinion prevails?
(The occupational health practitioner is referred to in many companies and collective agreements as the company doctor.)
An employer is within his rights to accept the opinion of the company’s occupational health practitioner even if it is in conflict with the employee’s doctor’s opinion. In such rare cases it is advisable for both practitioners to communicate and discuss each case on its own merits.
Collective agreements normally have provisions regulating such incidents.
5. What action can be taken in cases where sick leave is not certified?
The employer may request certification for sick leave. An employer has the right to deduct wages for any period of uncertified sickness. Moreover, the employer may consider such days as “unauthorised absence” which may lead to disciplinary action.
6. Are there stipulated times when an occupational health practitioner can visit an employee?
There are no stipulated times for a visit by an occupational health practitioner although one should follow prudence.
Most collective agreements contain provisions on the timings of occupational health practitioner’s visit to employees’ homes.
It is recommended that where no collective agreement exists, the employer informs the employees of both the time when the employees are expected to advise the employer that they are sick and the times when an occupational health practitioner may visit them at home.
7. Can an employer terminate employment upon expiry of sick leave?
When an employee utilises all his/her paid sick leave, he/she is normally allowed to utilise his/her remaining vacation leave. If following the utilisation of the vacation leave the employee remains on sick leave and does not indicate a reasonable date when he/she is expected to return to work, an employer may terminate the employment of the employee concerned.
8. Are benefits payable during periods of sick leave?
During periods of paid sick leave, (full pay or half pay) leave entitlements and statutory bonuses are due to the employee. An employer has no obligation to pay any such benefits during periods of unpaid sick leave.
9. Does the employer pay social security contributions during periods of unpaid sick leave?
Social security contributions are paid on earnings. If there are no earnings then there are no contributions payable.
10. Is the duration of unpaid sick leave at the discretion of the employer?
Unpaid sick leave is not an entitlement at law. Therefore the employer has absolute discretion to determine whether to grant unpaid leave or otherwise. The employer often seeks the advice of the occupational health practitioner.
11. Can unutilised sick leave be carried forward by mutual agreement between employer and employee?
The use of unutilised sick leave is at the total discretion of the employer. There are collective agreements that regulate such instances in cases of serious illness and/or hospitalisation.
12. Does occupational disease classify as sick leave?
When an employee is certified by a occupational health practitioner or the OHSA as having an illness caused through “an occupational disease”, then the period of absence will qualify as injury leave.
13. Can an employee refuse to be visited by an occupational health practitioner?
An employee cannot refuse to be visited by a occupational health practitioner, provided he/she is aware that the employer may make use of such services.
Employers are advised that they should inform their employees of the company’s right to send its own doctor to visit employees reporting sick.
It is advisable that the procedure of reporting sick and controlling sick leave be included in a sick leave policy, particularly when there is no collective agreement.
14. What happens when an occupational health practitioner calls and the employee does not answer the door?
In such cases the employer is within his/her rights to consider the absence as “unjustified absence” and may withhold payment for the period of unauthorised absence. In repeated cases the employer may consider other appropriate disciplinary measures.
15. Can an employer enquire about the sick leave record of an employee from previous employment?
No. Medical records are confidential in nature and may not be divulged by one employer to another. This would be in breach of the Data Protection Act.
16. Is sick leave a pro rata entitlement?
This varies according to the respective Wage Council Wage Regulation Orders. Many of these do not allow sick leave during the probationary period. Otherwise sick leave is an annual entitlement and the full entitlement may be utilised at any time of the year. During the first year of employment the sick leave entitlement is a pro-rata entitlement for the portion of the calendar year that is worked.
17. Can an employer insist on a pre medical examination?
The employer is within his/her rights to ask a prospective employee to undergo a medical examination.
18. Can an employer ask about a prospective employee’s medical history?
No. It is only through a medical examination conducted by a medical practitioner that an employer may have information on a prospective employee’s ability to carry out the tasks entailed in the job. Nevertheless the employee is obliged to answer in good faith to all questions asked by the medical examiner.
19. Is an employee obliged to tell an employer about his medical history?
An employee is obliged to answer in good faith to all questions asked by the medical examiner.
20. Are all part timers entitled to sick leave?
Following the 2010 amendments to the Part Time Regulations, all part timers without exception are entitled to pro rata sick leave entitlement.
21. Can an employee report sick during periods of vacation leave?
In accordance with recent amendments if an employee has already started his vacation leave and is certified as sick then the annual leave is cancelled to be used at a later date and will be converted into sick leave.
22. Do hospital visits count as sick leave?
It depends very much as to whether the employee is fit to work or not. If the employee is fit, then the absenteeism is deducted from annual leave. If the employee, on the other hand is unfit to work, the hospital visit will be considered as sick leave.
23. Is absence due to cosmetic surgery (e.g. nose job, breast implants) considered as sick leave?
This is a point of contention between employers, unions and government authorities. Clearly one has to use judgement to determine whether the nature of the intervention is entirely aesthetic or else whether it is linked to other physical or psychological disorders. The Association’s position is that in case of the former, the employer is not obliged to authorise paid sick leave.
24. Is absence on drug rehabilitation programmes considered as sick leave?
Employers may consider to grant time off for such programmes, but it is at their total discretion whether it is with pay or not.
25. Can an employer be selective in sending an occupational health practitioner to visit employees?
Visits by occupational health practitioners are at the discretion of employers who are free to decide whether to send practitioners or not.
26. Do periods of unpaid sick leave count for seniority purposes?
Periods of unpaid sick leave should not count for seniority purposes.
27. Is self inflicted injury at the workplace/not at work place considered as sick leave?
If an employer is convinced and can prove that a particular injury was self inflicted, he may refuse to consider the absence as sick leave. (An example of self inflicted injury/illness is sunburn).
28. Is regular absence due to alcoholism/drug abuse considered as sick leave?
Absence due to excessive consumption of alcohol or drug abuse is not considered as sick leave. Employers should advise any employee who has alcohol/drug problems to seek professional advice.
29. Is sunburn, hangover considered as sick leave?
As stated in question 27, such sickness may be considered as self inflicted and therefore should not qualify as sick leave.
30. What should be the role of the occupational health practitioners?
The occupational health practitioner advises employers on the suitability or otherwise of the employees’ ability to fulfil their jobs.
31. Can an employer appoint an independent medical board?
In circumstances which may lie beyond the competence of the occupational health practitioner to determine the suitability of an employee to assume his/her current or revised tasks in the company, it may be decided to set up an independent medical board for more detailed professional advice.
32. Can an employer initiate procedures for an employee to be medically boarded out?
The process of being medically boarded out depends on the employee and the Department for Social Security. The employer can only advise an employee to start such procedures, particularly in cases where there is a strong likelihood that an employee with a serious sickness/injury will not be returning to work or else in cases where it is not medically advisable for the employee to remain in employment.
