Work and sick leave during the same day. What about the salary for the time worked?

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Izabela PETRYKOWSKA
Junior HR & Payroll Specialist at RSM Poland

When a worker gets sick, the employer generally pays them sick pay or sickness benefit. Sick pay includes the first 33 days of illness in a given calendar year, with an exception of workers over 50, for whose sick pay includes the first 14 days of illness. The payment of sickness benefit starts from the 15^th day of illness for the workers over 50 and from the 34^th day for others.

What should be done in a situation when a worker gets sick after having worked for a part of a day and then receives sick leave for that day? How should a HR and payroll specialist account hours worked that day? Let’s briefly discuss the regulations related to this topic.

Work for a part of the day and sick leave – is the salary for the hours worked required?

Two regulations for the Labor Code are the starting point. Art. 80 states that the remuneration is paid for the work done. For the time of not doing the work an employee can receive a salary only when labor legislation states so. Moreover, according to Art. 82 of the Labor Code, the worker cannot waive the right to receive a salary. Therefore, for the hours worked under an employment relationship, the remuneration always has to be paid.

On the other hand, sick pay or sickness benefit are paid in daily rates, according to Art. 92 para. 2 of the Labor Code. The law doesn’t provide the possibility of paying sick pay or sickness benefit for a part of the day. Therefore, in the present case, for the first day of sick leave, the employee should receive remuneration for the hours worked and sick pay or sickness benefit for the whole day.

Sick leave after working the whole day, is it possible receive both remuneration for working within the scheduled time frame and sickness benefit?

Let’s look at a situation when the employee had worked the whole day according to the schedule and then went to the doctor and received sick leave that includes that already worked day. In such case, the employee should receive a remuneration for the worked day and a sick note should be applied from the following day. This approach is supported by Art. 12 of the Act of cash social insurance benefits in respect of sickness and maternity (further referred to as the Act). This article provides that the sickness benefit doesn’t apply to the periods of inability to work, during which the employee is insured under the compensation regulations that reserve the right to remuneration. In other words, receiving the full day’s pay excludes the right to receive sick pay or sickness benefit. In such case, the first day of illness is not included in the benefit period.

How does such day affect the working time? In an adopted settlement period, the working time is reduced by the hours of excused absence, that is the number of hours not worked because o  leaving the work place.

Let’s add that the rules above apply only to the potential first day of illness. The employee doesn’t have the possibility to independently shorten sick leave (only a doctor is authorized to do so). In such situation, they shouldn’t be allowed to work.

Consequences of working during sick leave

Providing the release from work is restricted by specified rules. It’s important to know that misusing sick leave can have serious consequences.

The period of not doing the work because of an illness should be at most dedicated for employee’s recovery, allowing them to get back to work at full strength after sick leave is finished.

If a worker during sick leave does other activities (for example carrying out a renovation, doing paid work for another workplace or going on holiday), the consequences can be severe.

According to Art.17 of the Act mentioned, the insured who, within the period of declared inability to work performs the paid job or misuses sick leave, loses the right to claim sickness benefit for the whole period of the release. On this basis, after checking the sick note, The Social Insurance Institution has the right to withhold payment of sick pay and even demand the return of already paid benefit. An employer might also terminate the employment contract, arguing the employee in that way made them incur unnecessary expenses.