Hong Kong – Singapore – Sickness Absence And Pay By Jurisdiction – What’s New?

19 November, 2020

 

As cases of Covid-19 continue to rise around the globe, many employees will sadly fall ill with the virus or be required to self-isolate. What employees are entitled to take as paid sick leave differs from country to country and has recently changed due to the pandemic.

 

In this alert, we answer frequently asked questions about sick leave and pay in the UK, UAE, Hong Kong and Singapore.

 

United Kingdom

 

Unless employees are granted company sick pay at their usual rate of pay under the terms of their employment contract or at the discretion of their employer, they will only be entitled to statutory sick pay ("SSP") (provided they meet the eligibility criteria). Generally, SSP is paid after the fourth consecutive day of absence with nothing paid for the first three days, which are known as "waiting days". However, since the Covid-19 pandemic, the rules on when SSP kicks in have changed. 

 

We set out below some of the most commonly asked question about sick leave from employers, with a focus on the specific sick leave entitlements for Covid-19. 

 

What are the requirements which employees must comply with in order to be entitled to paid statutory sick leave?

 

All employees, with certain exceptions, are entitled to receive SSP so long as they are too ill to undertake any work on the day for which they claim SSP. Employees must notify their employer of their illness in accordance with the protocol required by the employer and must supply evidence of their incapacity (see more below). The self-employed do not qualify for SSP and there are different rules for other agency workers, directors and educational workers. 

 

Employees who are suffering from either bodily or mental illnesses qualify for SSP, but they must be incapable of doing work which they would reasonably be expected to do under their contract of employment. Eligibility for SSP is also extended to employees who are not incapable of working but who are prevented from working as a result of illness or disease. For example, any employee who is signed off by their doctor for precautionary convalescence leave or any employee who must stay away from work pursuant to a notice made by the public health authorities because they have an infectious (but not debilitating) disease would qualify for SSP.

 

An employee is ordinarily only entitled to SSP if he has been sick for four consecutive days (including Sundays and Bank holidays). Any two periods of sickness absence which are separated by eight weeks or less are treated as a single period of absence for SSP purposes.

 

The current rate of SSP payable is £95.85 per week, this is paid by the employer for a maximum of 28 weeks in any period of entitlement.

 

If an employer deems that SSP is not payable for any reason, they must notify the employee so they can claim relevant state benefits.

 

Are there any specific sick leave entitlements for Covid-19?

 

Yes, in March 2020 the UK Government introduced different rules for employees who are suffering from Covid-19 or who need to self-isolate because of the virus. 

 

If an employee is off sick or self-isolating due to Covid-19, unlike other illnesses, the employee can receive SSP from the first day they are self-isolating. Such employees do not have any "waiting days."

 

Under these new rules, an employee is entitled to SSP from the first qualifying day if they are self-isolating for any of the following reasons:

 

• The employee lives (or someone they live with) has Covid-19 symptoms or has tested positive for coronavirus;
• They’ve been notified through the NHS or public health authorities that they have been in contact with someone with coronavirus;
• The employee has been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery; 
• The employee lives in an area with local restrictions in place, including advice to shield;
• The employee has been advised to shield because they are at very high risk of severe illness from coronavirus; or
• someone in the employee’s ‘support bubble’ (or for employees in Scotland and Wales, their 'extended household') has coronavirus symptoms or has tested positive for coronavirus. 

 

Employees are not entitled to SSP if they are self-isolating after entering or returning to the UK (e.g. after a holiday abroad) and do not need to self-isolate for any other reason.

 

Subject to certain conditions, small and medium employers can also use the Coronavirus Statutory Sick Pay Rebate Scheme to claim back two weeks' coronavirus related SSP.

 

What evidence of sickness can employers ask for?

 

It is only after the first seven days of sickness absence that employees are required to supply their employer with reasonable evidence of their illness. Forms of evidence can include a doctor’s fit note, a report by an Occupational Health service or an Allied Health Professional (AHP) Health and Work report (e.g. from a physiotherapist, podiatrist or occupational therapist) or a letter from a foreign doctor (if the illness was diagnosed abroad).

 

A fit note states that either the patient is “not fit for work” or “may be fit for work taking account of the following advice”. The advice may be recommendations for the employee to work reduced hours or for the employer to make workplace adjustments. 

 

More specifically, for employees suffering or isolating due to Covid-19, they could provide:

 

• An isolation note from NHS 111;
• Copies of the notification from NHS that they must self-isolate because they have been in contact with someone who has tested positive for Covid-19;
• A letter from a doctor or health authority advising them to shield; or
• A letter from a doctor confirming a date of a procedure if they have been told to self-isolate prior to surgery.

 

What if an employee is in lockdown and cannot easily provide evidence of their illness?

 

Isolation notes are readily available online from NHS 111 which is designed to alleviate this problem. However, for employees who do not have online access, employers will be expected to be more flexible with their requirements. This does not mean that employers should not monitor the situation but if the employer repeatedly contacts the employee asking for evidence of their illness this could amount to harassment and the employee could bring a claim in the Employment Tribunal.

 

Nevertheless, it is reasonable for an employer to request that an employee provides evidence of their illness at the employee’s first convenience. Doctors are increasingly conducting telephone and video consultations which should help employees to obtain evidence of their illness quickly.

 

If an employee has to quarantine after travelling abroad, are they entitled to sick pay?

 

Employees who do not have any symptoms, whether of coronavirus or another illness, are notentitled to SSP if they are self-isolating after returning to the UK from abroad. If an employee cannot do their job from home, it is advisable that they take additional annual leave to cover the period of isolation. Alternatively, the employer and employee can agree a period of unpaid leave.

 

What is the difference between sick pay and permanent health insurance?

 

SSP is a statutory right whereas permanent health insurance (‘PHI’) is a contractual benefit. PHI is an insurance product that provides an ongoing percentage of the employee’s salary if the employee falls ill and is unable to work. The policy is between the employer and the insurer, so employees are beneficiaries under the policy. If an employee fits the relevant criteria under the statutory rules, an employer must always pay SSP, whereas employers are not obliged to provide their employees with PHI, unless obligated to do so under the employee’s employment contract. Employers should draft PHI clauses in their contracts carefully so that if the insurer refuses to pay out to the employee, the employer is not liable to pay the employee in the insurer's place. 

 

Can employers require employees to undergo medical examination?

 

Employers often require medical reports to assess if an employee who has taken several short-term absences has an underlying medical condition, to establish when an employee on long term sickness may return to work, or to determine if any reasonable adjustments are necessary that might assist an employee to do their job. However, an employer must seek the employee's consent to medical examination and for any medical information to be shared with them. Employees can exercise their right to see a draft medical report before it is supplied to their employer.

 

Employers should be clear about the purpose of the report, who will see it and what it will be used for. Employers must also comply with various provisions under the Access to Medical Reports Act 1998 as well as data protection legislation arising out of the GDPR. This is because medical information is categorised as 'special category data' which means employers must follow stringent data processing rules when handling this type of personal data.

 

How should employers deal with sickness during redundancy consultations or disciplinary proceedings?

 

If an employer selects an employee for redundancy due to their health or sickness record, they run the risk of the employee challenging the redundancy and claiming unfair dismissal or bringing a claim for discrimination in the Employment Tribunal. It is possible to make a sick employee redundant, but the selection process must be objective and fair.

 

Employees who are off sick must be included in redundancy consultations so far as possible. Employers should take reasonable steps to contact the employee and keep a record of their attempts to consult with the employee. Adjustments to the consultation process may need to be made to accommodate the sick employee, for example meeting outside of the workplace (if to meet in the workplace would be difficult for the employee) or to hold a video meeting instead. There is no right for an employee to be accompanied during a redundancy consultation meeting but if a sick employee requests a companion, employers should consider allowing one.

 

In terms of disciplinary proceedings, employers will be expected to re-arrange disciplinary hearings once or twice if an employee cannot attend due to ill health. If it becomes clear that the employee is unlikely to return to work for some time, it is possible for the employer to make a disciplinary decision in the employee's absence. Employers should follow the Acas Code of Practice on disciplinary and grievance procedures so far as possible.

 

Sickness should be carefully managed throughout either a disciplinary or redundancy process to reduce the risk of potential claims. Suggestions to facilitate the process include having open, regular and transparent communications to ensure the employee is kept involved and up to date throughout the process. 

 

Can employers dismiss employees for excessive sick leave?

 

Yes, provided that an employer has first made any necessary reasonable adjustments to facilitate the employee's return to work and has given the employee sufficient time to recover from their illness, an employer has the right to dismiss an employee if they have a long-term illness that makes it impossible for them to perform their role. There may also be a clause in the contract of employment which permits an employer to terminate the employee's employment if they have been absent for a certain length of time. 

 

It is also possible to keep an employee employed solely for the purposes of receiving PHI payments. In this circumstance, and depending on the wording of the employment contract, the employer would not be obliged to pay any salary or other benefits to the employee whilst they are in receipt of PHI payments.

 

Due to the potential for discrimination claims, terminations on sickness grounds have to be carefully managed. 

 

Hong Kong

 

The Employment Ordinance (“EO”) sets out an employee’s entitlement to receive statutory sick pay. Many employers in Hong Kong provide sick pay entitlements which are more generous than that provided by the EO. In this e-alert we look in detail at an employee’s entitlement and what employees need to provide to secure paid sick leave. 

 

What are the requirements which employees must comply with in order to be entitled to paid statutory sick leave?

 

To be entitled to receive paid sick leave, an employee must be in continuous employment, i.e. have been employed for at least 18 hours per week for at least 4 consecutive weeks. The employee will only be entitled to paid sick leave if they have accrued sufficient sick leave allowance. 

 

Sick leave allowance accrues at a rate of 2 days per month in the first year of employment and four days per month from the second year of employment onwards. A maximum of 120 days sick leave allowance can be accrued at any one time. 

 

The first 36 days of accumulated sick leave is categorised as Category 1 days and the remaining 84 days which make up the 120 days are classified as Category 2 days. 

 

An employee is only entitled to statutory sick pay if he is sick for 4 consecutive days on which he is required to work and provides a medical certificate for the duration of the time the employee is absent. Therefore, if the employee only takes sick leave for 3 days, he is not entitled to be paid for these days under the EO and his employer can treat these days as no pay sick leave. Savvy employers will normally have policies that allow employees to be off sick for 1-2 days and still be paid their normal wages without deductions to discourage staff from taking 4 days off in order to receive statutory sick pay. 

 

Only once the employee has taken 4 or more consecutive workdays as sick leave will he be entitled to receive statutory sick pay at the rate of 80% of the daily average wage. The rate of sick pay calculated by the employer needs to take account of the wages earned by the employee in the 12 month period immediately before the sick leave period or where the employee has been employed for less than 12 months, the period of employment immediately before the sick leave period.

 

Are there any specific sick leave entitlements for Covid-19?

 

There are no special entitlements for an employee who has contracted Covid-19. However, some employers have not been insisting that employees who are taking Category 2 days provide a medical certificate from a doctor at a hospital which is a requirement in order to receive statutory sick pay for Category 2 days. See below for more details. 

 

What evidence of sickness can employers ask for?

 

An employee must submit to their employer a medical certificate which states the days on which the employee is considered unfit to work as well as the nature of the illness/disability for which the employee is unfit for work. For Category 1 days, the medical certificate should be provided by a registered medical practitioner or dentist. For Category 2 sick leave the medical certificate must be provided by a registered doctor or dentist who attends to the employee at a hospital. When the employee starts taking Category 2 sick leave, the employer can also require that the employee obtains a brief record of the investigation carried out by the doctor treating the employee at the hospital and to state the treatment which has been prescribed. 

 

What if an employee is in lockdown and cannot easily provide evidence of their illness?

 

Most employers have fairly relaxed policies for the first few days of sickness and will accept self-certification. However, for those employers which strictly follow the provisions of the EO, no exceptions are available for compliance. Some doctors in Hong Kong are offering consultations by video and/or by phone and a medical certificate can be emailed to the employee thereafter. Hong Kong has not experienced mandatory lockdown and so most doctors are still seeing patients as normal. 

 

If an employee has to quarantine after travelling abroad, are they entitled to sick pay?

 

Yes, assuming that they have accrued sickness allowance to cover the 14 day quarantine period. However, if an employee is not ill and chooses to work from home or from the quarantine centre during the quarantine period, they should be paid wages in full and not be treated as if they are on sick leave. 

 

What is the difference between sick pay and permanent health insurance?

 

Permanent health insurance, also known as PHI, is a form of insurance that is taken out by an employer to provide benefits to employees if they become incapacitated and unable to work due to long-term sickness. In Hong Kong some employers do take out this type of insurance but normally only for their management team.

 

Can employers require employees to undergo medical examination?

 

An employer owes a duty of care to ensure the health and safety of all of its employees. Where an employer has reason to believe that an employee is exhibiting symptoms e.g. the employee is coughing and appears to have a fever, the employer may ask the employee to undergo a medical examination to safeguard the health and safety of its workforce. 

 

In addition, to the above, employment contracts normally contain a provision which requires the employee to undergo a medical examination at the employer’s request. 

 

How should employers deal with sickness during redundancy consultations or disciplinary proceedings?

 

In Hong Kong there is no obligation to consult with employees before redundancies are made. An employer should not give an employee advance notice that they will be made redundant in the future as the employee may take long term sick leave to delay the redundancy from happening as employees who are on paid sick leave cannot have their employment terminated.

 

Similarly, employees may seek to take sick leave during disciplinary proceedings to disrupt the process. It is best for employers to fix meetings with an employee to discuss the outcome of a disciplinary hearing at short notice preferably on the same day to avoid employees going sick and seeking to postpone the meeting. 

 

Can employers dismiss employees for excessive sick leave?

 

If an employee is on long term sick leave supported by medical certificates, it would be risky to seek to dismiss them simply because their employment contract gives them a contractual right to dismiss where a specified number of sick days are exceeded. An employer which takes such action puts themselves at risk of the employee claiming that the dismissal was unlawful and the employer has discriminated against the employee based on the disability which they were suffering from which prevented them from being fit to work.

 

United Arab Emirates

 

For the purpose of this alert, we have focussed on the legal requirements that apply to:

 

• Private sector employers subject to the UAE Labour Law (No. 8/1980) (the “UAE Labour Law”) as well as the Ministry of Human Resources and Emiratisation's ("MOHRE") Ministerial Resolution No. 279/2020 (the “MOHRE Resolution”), which enables employers to implement certain emergency employment measures in light of the COVID-19 pandemic; and
• Private sector employers subject to the Dubai International Financial Centre (“DIFC”) Law No.2/2019 (the “DIFC Employment Law”).Up until 31 July 2020, the DIFC Presidential Directive No. 4/2020 (the "DIFC Directive") implemented emergency employment COVID-19 measures and relaxed certain provisions of the DIFC Employment Law, including in relation to COVID-related sickness absence (see our previous alert on these measures here). The Directive does not apply from 1 August 2020 onwards but may still be relevant in relation to, for example, DIFC employers who are assessing an employee's total period of absence over the past 12 months.

 

In addition, employers onshore and in the DIFC will need to adhere to any health and safety circulars that are issued from time to time by certain lawful authorities, such as the UAE Ministry of Health and Prevention (MOHAP) and the Dubai Health Authority (DHA) and the DIFC Authority; an example being the DIFCA and DHA guidelines issued in response to the Coronavirus (COVID) pandemic in 2020 and which identified certain additional social distancing and hygiene measures to be implemented for pregnant employees to minimise their exposure to the virus.

 

What are the requirements which employees must comply with in order to be entitled to paid statutory sick leave? 

 

Employees based onshore who are subject to the UAE Labour Law only have a statutory entitlement to sick leave once they have passed any probation period (which can be up to 6 months) and completed an additional 3 months’ continuous service. They are then entitled to a minimum of 90 calendar days' statutory sick leave per year, at the following rates:

 

• full pay for the first 15 calendar days of absence; 
• half pay for the next 30 calendar days; and 
• no pay for the remaining 45 calendar days.

 

If the reason for their sickness is caused by their own behaviour, such as from alcohol or drug consumption, the employee will not be entitled to sick pay. 

 

In certain circumstances, if the employee resigns within the first 45 days of sick leave, they may be entitled to be paid for the remainder of the 45 day sick leave period. The termination of employees during or after the 90 day period is dealt with at question 9, below. 

 

Most employees based in the DIFC and subject to the DIFC Employment Law have a statutory entitlement to 60 days' sick leave per year from day 1 of employment, at the following rates:

 

• full pay for the first 10 working days of absence;
• half pay for the next 20 working days of absence; and
• no pay for any remaining sickness absence. 

 

There are a couple of exceptions to this. If the employee falls into one of the prescribed special categories of employment under Article 4(2)-(4) of the DIFC Employment Law, including employees on a qualifying 'Secondment', or is a 'Short-Term Employee' (as those terms are defined in the DIFC Employment Law), they have no statutory entitlement to sick leave or pay in the DIFC, but may still have an entitlement to paid sick leave under their employment contract.

 

In both jurisdictions, these minimum entitlements can be enhanced (but not reduced, save in very limited circumstances) in the employment contract at the employer's discretion.

 

Are there any specific sick leave entitlements for Covid-19?

 

The sick leave provisions under the UAE Labour Law continue to apply and have not been amended by the MOHRE Resolution (or any others) to deal with COVID-related sick leave. Employers may want to consider enhancing sick leave entitlements to deal with COVID-related sick leave – whether the employee has contracted COVID or has come into contact with someone who has – to reduce any potentially infectious employees feeling compelled to attend work and risk spreading the virus. This will be particularly relevant where the employees' role can’t be performed from home and/or they have exhausted their sick leave entitlement for the year.

 

The DIFC Directive (applicable from 21 April 2020 to 31 July 2020) entitled DIFC-based employees to full pay for any period of certified COVID-related sick leave (i.e. due to contracting the illness or mandated quarantine) and offered them the following additional protections for the period that the DIFC Directive was in force:

 

• they were protected from being subjected to any of the DIFC Directive emergency measures, such as the imposition of reduced working hours and/or pay, or enforcement of paid holiday, unless those measures applied prior to their sick leave (see our previous alert on this here); 
• any COVID-related sick leave was excluded from their annual sick leave entitlement; and
• employers were not permitted to dismiss the employee for taking excess (i.e. over 60 days) sick leave, unless the sick leave was unrelated to COVID.

 

Although the DIFC Directive is no longer in force, DIFC employers should make sure that they have kept records of any COVID-related sickness absence that occurred during the period of the Directive and which needs to be excluded from any annual totals; and bear in mind that its application may be relevant for any related disputes raised by employees in the coming months. DIFC employers should also consider reviewing their COVID-related sickness policies and consider whether it would be reasonable to continue to apply all or part of the measures mandated by the DIFC Directive as a matter of good practice, and to encourage employees to disclose actual/potential contraction of the virus and stay away from the workplace. Further options for dealing with COVID-related absence are detailed in response to question 6.

 

What evidence of sickness can employers ask for?

 

Employers can and should require employees (under the employment contract) to provide evidence of their sickness such as a doctor’s letter or medical certificate. As employees can be disciplined and potentially dismissed for periods of unauthorised absence, it will be in their interests to comply with a reasonable request for a medical certificate. 

 

In any event, employees subject to the UAE Labour Law must report their absence within 2 days and, provided that the illness has not been caused by an occupational injury, employers are required to send an employee for a medical examination and diagnosis immediately on the employee reporting their illness if necessary. It is also good practice to include the contractual right to require employees to undergo medical examinations and provide access to their medical records where necessary, subject to the employee's express consent to collecting and processing such personal data, and implementing appropriate measures to protect the data to ensure that any applicable privacy requirements (such as those in the UAE Penal Code and Cyber Crimes Law) are met where possible. 

 

Under the DIFC Employment Law, on request from their employer, employees must provide a sick leave certificate from a medical practitioner registered with a competent DIFC or government authority (as defined in the DIFC Employment Law) to cover the entire period of their absence. Again, it is good practice to ensure that this requirement is also included in the employment contract, along with the requirement to undergo medical examinations and provide access to medical records. Employers in the DIFC are also subject to the DIFC Data Protection Law (No.5 of 2020) (the "DP Law") and must therefore be particularly careful to ensure that such personal data – classed as a special category of personal under the DP Law – is processed and protected in accordance with the requirements under the DP Law (see further information on the DP Law here). 

 

What if an employee is in lockdown and cannot easily provide evidence of their illness?

 

Employers in the UAE are required to provide health insurance to all employees who are under their sponsorship and this will usually cover a wide range of hospitals and clinics which makes it easier to access urgent medical care, even during a period of lockdown. Many clinics are also now offering remote telephone or video appointments which should allow employees to get a diagnosis and medical certificate if they are too sick to leave their home, required to quarantine and/or do not have appropriate transport to visit a clinic. If it really is impossible for an employee to obtain the required certificate, an employer could ask them to self-certify their absence, and impress upon them the importance of making an honest disclosure and the potential consequences if the employer has reason to believe they are being dishonest.

 

If an employee has to quarantine after travelling abroad, are they entitled to sick pay?

 

The DIFC Directive provided for enhanced sick pay and leave entitlements if an employee was required by the government to quarantine post-travel (see response to question 2 for more details). However, as the DIFC Directive has now expired, there is now no legal entitlement to sick pay in either jurisdiction in these circumstances. There is no equivalent provision to this effect in the MOHRE Resolution.

 

If an employee can work from home ("WFH") then they should do so and continue to be paid in the usual way; if not, then it will be up to the employer to decide how best to deal with this scenario, for example, by altering duties so that the employee can WFH, by issuing a direction to take paid holiday or unpaid leave, or by offering to take the period as paid sick leave. Employers should be clear how this will be dealt with up front, and may make the treatment of this period subject to the reasons for the trip (e.g. for business or pleasure) and the extent to which the employee understood that quarantining would be necessary on return before they travelled.

 

What is the difference between sick pay and permanent health insurance?

 

Sick pay entitlements under the UAE Labour Law and DIFC Employment Law are detailed in response to questions 1 and 2. These are payments made by the employer to the employee in respect of, generally short-term, sickness absence. Permanent health insurance ("PHI") benefits are designed to cover the situation where the sickness absence is much longer-term and where the employee is incapacitated from performing their role for a significant period of time. Such benefits may be offered by employers in addition to minimum and/or contractual enhanced sick pay entitlements. Any such PHI entitlement will be subject to the terms and conditions of the relevant PHI policy, which will likely require employees to have been unfit for work for a certain amount of time (often six months) and be subject to certification of their medical condition and prognosis from a medical practitioner. Employers should consider an employee's entitlement under any PHI policy before it terminates their employment during sickness absence (as well as the considerations detailed at question 9) as, if the termination of their employment deprives the employee of receiving benefits under that scheme, there is a risk that the employee may sue an employer for breach of contract for the loss of such benefits. This is on the basis that there is a term to be implied that an employer may not dismiss an employee in such circumstances.

 

Can employers require employees to undergo medical examination?

 

As per the explanation in response to question 3, under the UAE Labour Law employers are in fact required to send employees for a medical examination and diagnosis immediately on the employee reporting their illness. DIFC-based employers can only require employees to undergo medical examination if they have the right to do so under the employment contract or get the employee's express agreement at the time that the examination is required. The results of any such examination should be treated with care for the purposes of safeguarding privacy and data protection rights.

 

How should employers deal with sickness during redundancy consultations or disciplinary proceedings?

 

There are no specific legal requirements in either jurisdiction that dictate how employers should deal with such proceedings during a period of sickness absence and indeed, neither jurisdiction requires a redundancy consultation process (see our international redundancies alert here), for further details on the redundancy aspects. 

 

Only the UAE Labour Law (and not the DIFC Employment Law) contains any form of prescribed disciplinary/dismissal process. For example, under the UAE Labour Law, employers are required to provide the employee with an opportunity to comment on any disciplinary allegations against them, and to allow them to provide a relevant explanation or defence. It is worth noting that, under UAE Labour Law, notice of termination cannot be given to an employee whilst they are on statutory sick leave (paid or unpaid) unless dismissal without notice is otherwise justified under the UAE Labour Law. There is no corresponding restriction under DIFC Employment Law.

 

Whilst there is no equivalent statutory requirement in the DIFC Employment Law to carry out a disciplinary/dismissal process, it would be best practice to carry out some form of process, particularly where sickness absence is involved in case there is an underlying disability that might give rise to allegations of discrimination. 

 

Sickness absence of itself is not a bar to carrying out redundancy or disciplinary processes, should that become necessary; however, it may be necessary to consider delaying or making adjustments to the process to take account of the employee's particular illness or injury. Employers in both jurisdictions may choose to carry out a redundancy consultation and/or disciplinary proceedings to limit the risk of claims, reduce the amount of compensation that may be awarded for any potential claim, and/or to adhere to any international group policy and standards of best practice. Where this is the case, employers should give employees notice to attend a meeting to discuss these issues even if they are sick, on the basis that being unfit for work does not necessarily mean that they are unfit to participate in a process. Meetings should be carried out by video conference where possible and, if an employee can’t attend, employers should act reasonably and give them a further opportunity to do so. They can then advise that a decision on their termination under the relevant process may be made in their absence. The considerations included in our response to question 9 below should be accounted for before making any such decision to terminate.

 

Can employers dismiss employees for excessive sick leave?

 

Under the UAE Labour Law, if an employee fails to return to work after exhausting their 90 calendar days' sick leave entitlement, then the employer can terminate their employment. The employee will forfeit their sick pay but will still receive any end of service gratuity entitlement (if they have more than 1 year of service). However, as mentioned above, employers cannot serve notice to, or dismiss, an employee whilst they are on sick leave i.e. during the 90 day period, unless the employer is otherwise justified in terminating without notice or gratuity in accordance with the UAE Labour Law.

 

Under the DIFC Employment Law, where an employee takes more than an aggregate of 60 working days of sick leave in any 12 month period, the employer may terminate their employment with immediate effect on written notice to the employee, unless the employee has a disability. Disability is defined under the DIFC Employment Law as a mental or physical impairment which has a substantial or long-term adverse effect on the employee's ability to carry out their duties which has/is likely to last 12 months. Employers should therefore carry out appropriate investigations with the employee and their medical practitioner prior to any dismissal to mitigate the risk of any disability discrimination-related claim.

 

Singapore

 

What are the requirements which employees must comply with in order to be entitled to paid statutory sick leave?

 

The employee must have worked with their employer for a minimum of three months and be covered under the Employment Act1. 

 

According to section 89(4) of the Employment Act, an employee who absents himself on sick leave which is not certified by a medical practitioner or which is certified by a medical practitioner not appointed by the employer but of which the employee did not inform or attempt to inform the employer within 48 hours after its commencement, shall be deemed to have absented himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work. 

 

For employees who have worked for less than three months, employers are encouraged to exercise flexibility to granting sick leave2.

 

Are there any specific sick leave entitlements for Covid-19?

 

Employees who exhibit respiratory symptoms will be required to take five days of paid sick leave, which may be considered under paid outpatient leave or paid hospitalisation leave. In the event where such employees have insufficient paid outpatient sick leave in future, employers are urged to exercise flexibility and compassion by granting additional leave to these employees3.

 

What evidence of sickness can employers ask for?

 

Employers can ask the employee to provide a medical certificate from a registered medical practitioner as proof that the employee was unfit for work. Should an employee choose to visit a traditional Chinese medicine practitioner instead, the company may nonetheless exercise their discretion to grant the employee paid sick leave4.

 

What if an employee is in lockdown and cannot easily provide evidence of their illness?

 

Under section 4(3)(b) of the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 Act, an employee is permitted to leave his place of residence to visit a doctor for any medical condition and should be able to obtain a medical certificate (unless that employee is subject to a movement control measure). 

 

If an employee has to quarantine after travelling abroad, are they entitled to sick pay?

 

According to the Advisory for employers and employees travelling to and from COVID-19 affected areas (the “Advisory”), if an employee is under a quarantine order like a Stay-Home Notice (“SHN”) or a Leave of Absence Order (“LOA”), employers may adopt flexible work arrangements to allow the employees to work from home. 5 In that situation where the employee is subject to a quarantine order but is otherwise healthy, they will be working from home and will not be required to take leave. 

 

However, if the employee is unable to work from home due to the nature of his/her work, employers are encouraged to provide additional paid leave for the LOA/SHN period over and above the employees’ annual leave entitlements. If that is not feasible, employers can consider the following options or a combination of the options, for the employees on LOA/SHN like (a) treating the employees’ LOA/SHN as paid hospitalisation leave or paid outpatient sick leave; (b) allow employees to apply for annual leave (c) allow employees to use advanced paid leave or apply for no pay leave, for employees who have used up their leave entitlements; or (d) other mutually agreed arrangements between the employers and employees / unions6. 

 

What is the difference between sick pay and permanent health insurance?

 

Sick pay leave is applicable when the employee is unable to work for a relatively short duration, and there are limits imposed on the duration of sick pay. 

 

For employees covered by the Employment Act, each employer is entitled to a number of paid sick leave which is proportional to the number of months they have worked with their employers. Employees who have worked for 3, 4, 5 and 6 months or more, are entitled to 5, 8, 11 and 14 days (maximum) of paid sick leave, respectively7. Under the Employment Act, paid sick leave is capped at 14 days, while paid hospitalisation leave (inclusive of paid sick leave) is capped at 60 days. The employee’s income will be protected in its entirety throughout this duration. There is no statutory right for an employee’s unutilised sick leave entitlement to be accrued.

 

As regards insurance, it is compulsory under the Work Injury Compensation Act (“WICA”) for every employer to insure and maintain insurance under one or more approved policies with an insurer to meet the liabilities that may be incurred to employees under WICA, unless the Minister by notification in the Gazette waives the requirement. Currently, this requirement is waived for all employers of all persons with monthly earnings of more than $2,100 and who are employed otherwise than by way of “manual labour”.

 

Can employers require employees to undergo medical examination?

 

Employers may request for employees to undergo medical examination. However, this requirement should be stipulated in the employee’s employment contract, as it is not provided for in legislation. 

 

Under the Workplace Safety and Health Act 2006, employers are obligated to ensure workplace safety. In the context of Covid-19, if an employee is displaying respiratory symptoms, employers may require the employee to work from home or visit a medical practitioner, who will then advise the employee on whether a swab test is necessary8. Under section 9 of the Infectious Diseases (Workplace Measures to Prevent Spread of COVID-19) Regulations 2020, the employee has to comply with such instructions from their employers. Depending on the nature of their job, employees may be legally required to take a swab test before returning to work. 

 

How should employers deal with sickness during redundancy consultations or disciplinary proceedings?

 

Employers should take into consideration that the employees are not feeling well and wait for the employees to recover before proceeding with the redundancy consultations or disciplinary proceedings. However, if the employee is sick for an inordinate amount of time and the consultations or proceedings are in danger of being dragged out, the employer should engage in discussions with the employee to see if the employee is fit to proceed. 

 

Can employers dismiss employees for excessive sick leave?

 

The employer always has the right to terminate the employment contract after giving due notice to the employee. He can therefore do so in respect of an employee who takes excessive sick leave.

 

However, the decision to terminate an employment contract should not be made lightly and employers should take into consideration the negative repercussions on the employee and their family, especially if the employee is in ill health.

 

The Singapore section of the article was written by Jason Yang and Christine Ong at Virtus Law LLP (a member of the Stephenson Harwood (Singapore) Alliance). For more information, please do not hesitate to contact any of the team at Stephenson Harwood (Singapore) Alliance.

1 See further: <https://www.mom.gov.sg/employment-practices/leave/sick-leave/eligibility-and-entitlement>.

2 See further: < https://www.mom.gov.sg/faq/sick-leave/probation-shouldnt-affect-your-sick-leave-entitlement>. 

3 See further: <https://www.mom.gov.sg/covid-19/frequently-asked-questions/eligible-claims-and-medical-benefits>. 

4 See further: <https://www.mom.gov.sg/faq/sick-leave/my-employee-visited-a-tcmp-are-they-eligible-for-paid-sick-leave>. 

5 See further “Advisory for employers and employees travelling to and from COVID-19 affected areas” at [9] <https://www.mom.gov.sg/covid-19/advisory-for-employers-and-employees-travelling-to-and-from-affected-areas>. 

6 See further “Advisory for employers and employees travelling to and from COVID-19 affected areas” at [10]  <https://www.mom.gov.sg/covid-19/advisory-for-employers-and-employees-travelling-to-and-from-affected-areas>.

7 See further < https://www.mom.gov.sg/employment-practices/leave/sick-leave/eligibility-and-entitlement>.

8 See further: < https://www.enterprisesg.gov.sg/-/media/esg/files/covid-19/guide-on-business-continuity-planning-for-covid.pdf>.