Employment & labor law /

Sick leave on holiday – how to account for an employee?

Annual leave is a break from work, which guarantees that the employee retains the right to remuneration. The holiday has a special, legally defined goal – to ensure the employee rest and recovery after a longer period of work. Annual leave is an employee’s right which is personal and non-transferable. This described essence of vacation leave means that if the employee on vacation leave becomes sick, the purpose of the leave cannot be achieved. This in turn implies for the employer a specific course of action towards such an employee. Simultaneous vacation and sick leave are not legally permissible.

The Supreme Court has repeatedly commented on being on leave and sick leave at the same time, indicating that it is unacceptable for an employer to agree to vacation leave during a period of incapacity for work (see judgment of 24th of February 2015, reference number II PK 84/14 ). Similarly, in a judgment of 10th of November 1999 (I PKN 350/99), the Supreme Court indicated that an employer could not effectively grant annual leave to an employee unable to work, even with his approval or at his request. Inability to work excludes the possibility of using the leave for its intended purpose, therefore granting it during the period of incapacity for work is legally unacceptable and incapacity to work due to illness always remains in opposition to vacation leave.

So what should you do in this situation?

  1. First – the employee should obtain a medical certificate of incapacity for work (L4); If the employee rests within the country, the sick leave will be automatically sent to the employer in electronic form, but if the employee rests abroad, he should obtain a sick leave issued in accordance with the provisions of the country in which he is staying and provide it to the employer (NOTE! If the employee spends vacation outside European Union, the exemption should be submitted together with the sworn translation into Polish); Let us remember! Obtaining and providing an employer with a medical certificate by an employee is the basis for further actions on the part of the employing entity;
  1. Secondly, the employer should count the time of sick leave falling during the period of leave granted to the pool of leave remaining to be used in a given calendar year;
  1. Thirdly, the employer is obliged to correct the remuneration due to the employee for the month in which the vacation leave was interrupted due to inability to work – during the leave the employee retains the right to 100% of remuneration, while during illness (except for legal exceptions) the employee is entitled to 80% of remuneration.

Inability to work during an ongoing vacation may be embarrassing for both parties. An employee, especially when resting outside the country, should ensure that he / she receives a sick leave issued in accordance with the regulations of the given country – only such a document will be the basis for the employer to properly settle with the employee in this situation. On the other hand, the employer should bear in mind that he will have to grant leave to the employee at a later date during the sick leave. In addition, in most cases, an adjustment of the remuneration paid to the employee will be required

Author team leader DKP Legal Alicja Myśluk-Landowska
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