Late last year, unconventional actions by the management of a Tesla factory in Germany came under the media spotlight. The factory managers noticed a high rate of sickness among staff – nearly triple the national average. In an effort to understand the high absenteeism rate and detect potential abuses, Tesla began making unannounced visits to the homes of sick employees.
This controversial move raises the question of what resources are available to Luxembourg employers when they suspect that an employee may be abusing sick leave.
There are several means that the employer can resort to and which are provided for by law.
___
Medical counter-examination
Sometimes the employer has doubts about the reality of an employee’s illness or believes that it is dealing with a fraudulent certificate of sickness.
In that case, the employer may ask the employee, during the period of a medically confirmed illness, to undergo a new medical examination by a doctor of the employer’s choice.
The employee cannot refuse to submit to a requested counter-examination without valid reasons. If the employee fails to submit to this re-inspection and provides no explanation to their employer, this is considered serious misconduct. Furthermore, the protection against dismissal becomes void.
___
Administrative audit
The employer can also initiate an administrative audit by making a request to the National Health Fund (CNS).
Administrative monitoring of persons who claim to be unable to work means the presentation of inspectors at the person’s home or at any place where they are staying. Monitoring may also take place in public places or in health centers visited by the employee.
Administrative control is carried out by sworn inspectors appointed by the CNS. The inspectors carry an authorisation card and are responsible for determining whether the employee is complying with the legal provisions regarding sick leave.
___
Private detectives
In the past, employers frustrated by numerous sick leave absences of some of their employees, have opted to use the services of a private investigator.
However, the use of a private detective to verify the veracity of a sickness certificate has been deemed on several occasions to be an improper and inadmissible means of proof, because it constitutes an unlawful invasion of the employee’s privacy.
___
Personal visit to the employee's home
As with the use of a detective, a personal visit to the employee’s home by the employer or one of its managers could be deemed an improper interference with the employee’s privacy.
___
Takeaway for employers
According to Tesla, the employer’s intention was only to ‘seek dialogue with the employees who were unable to work in order to find out what was wrong with them. In this context, a personal visit probably has a different effect than a simple phone call.’
Whether these unusual measures would actually provide a solution to high absenteeism remains an open question. Employers have at their disposal other (and likely more effective) means to deal with suspected abuse of the sick leave rules.
*Castegnaro
