A few days ago, an HR manager approached me for help and advice. They had a female employee who had been on sick leave for over six months, claiming to have a back problem. She had been with the company for a long time.
The company offered to compensate the employee for medical expenses and negotiate a termination of her contract, but she insisted on an additional payment of 2N. When the HR manager attempted to verify the authenticity of her sick leave certificate with the hospital, they were turned away by an uncooperative doctor. As I heard their story, I couldn’t help but consider the employee’s supposed back problem, which is one of the top two excuses used for taking fraudulent sick leave, along with depression.
Legal Analysis: Case-specific Legal Advice
Dealing with employees taking fake sick leave can be challenging, but not impossible. Here are some suggestions for employers:
- Employers should verify employees’ medical conditions with hospitals to make it harder to obtain a fake sick leave certificate. Specifically, employers should visit the hospital after each sick leave certificate is issued and file a complaint with the medical administration if the doctor refuses to issue a certificate. This may make doctors uneasy and reluctant to issue sick leave certificates for employees who take fake sick leave.
- Employers should visit employees’ homes more frequently to check if they are really at home recuperating. They should take the initiative to visit employees’ homes, communicate with neighbors to investigate, and gain insight into employees’ actual situations.
- Employers should ask employees to cooperate with follow-up examinations at the hospital. Since employees are not obligated to cooperate, employers should provide them with convenient conditions such as subsidies, special car pick-up and drop-off, and arranging for employees to have a medical examination at an authoritative hospital.
- If employers can gather evidence that employees are taking fake sick leave during the verification and home visit process, they can terminate their employment.
These are some practical suggestions. However, if employers are unable to resolve the problem through the above methods, they can consider the following options:
Employers can suspend the employee’s salary by citing the high probability of them taking fake sick leave (such as doubting the authenticity of the sick leave certificate, finding that the employee’s health condition is normal during a visit, or the employee refusing to cooperate with multiple re-examinations arranged by the employer).
However, the employee’s social insurance payments cannot be suspended to avoid the risk of being deemed illegal termination of employment by suspending the social insurance payments and not being able to claim medical expenses.
Suspending the employee’s salary can lead to two possible adverse consequences: (1) If the employee files a lawsuit against the employer to claim sick leave pay, and the employer loses the case, they will have to compensate the employee. (2) If the employee informs the employer of their resignation according to Article 38 of the Labor Contract Law and requests compensation, the employer will have to pay the compensation if they lose the case.
Legal Analysis: Personnel Management Recommendations
The above suggestions are proposed from the perspective of individual case handling. If employers want to solve the problem from the perspective of company management systems, they can consider the following methods:
- Streamline positions and use various methods to lay off some employees who have poor work enthusiasm and contribute little. Employers would rather bear some severance costs as a cost now.
- Adjust and optimize the salary structure, so that employees who work normally can receive higher income while employees who frequently take fake sick leave can only receive the minimum salary guarantee, in order to motivate employees to work actively.
- The following points should be emphasized in the design of specific rules and regulations:
- In the company’s attendance regulations, detailed requirements for the process and materials for employees applying for sick leave should be clarified, and employees should be obliged to undergo a physical re-examination.
For example, “When the Personnel and Administration Department has doubts about the diagnosis certificate provided, it must be rechecked at the hospital designated by the company. The company arranges personnel to accompany the employee to the designated hospital for the re-examination. The cost of the re-examination is borne entirely by the company. If an employee refuses to cooperate, it will be considered as false sick leave and may face disciplinary action.”
- The company’s regulations should stipulate that employees should take measures beneficial to their health when taking sick leave, and prohibit employees from using sick leave as an excuse for travel or engaging in personal affairs.
For example, “Employees should take measures beneficial to their health when taking sick leave, and are strictly prohibited from using sick leave to travel or engage in personal affairs. If there are special circumstances, they must report to the company when applying for sick leave. Otherwise, it will be regarded as dishonest behavior, and will be dealt with according to the ‘Penalty Regulations’ in this handbook. The ‘Penalty Regulations’ clearly state that all types of dishonest behavior, including but not limited to false leave (including false medical certificates, fake sick leave, etc.), are serious violations.”
- In the company’s Penalty Regulations, the act of falsely taking leave by employees should be defined as a serious violation, and the right to pursue criminal responsibility should be reserved.
For example, “All types of dishonest behavior, including but not limited to false resumes, providing false personal information to the company with malicious intent, theft (of company property, employee or others’ property), false reimbursement (i.e., using fraudulent methods to claim expenses, including but not limited to false invoices/forged reimbursement vouchers/fabricated reimbursement facts), false leave (including but not limited to providing false sick leave certificates/faking sick leave/using sick leave to travel or engage in personal affairs), entrusting others/being entrusted to clock in/out, signing in/out (leaving early) and actually being absent, embezzlement/misappropriation/diversion/failure to timely return the company, other employees or customers’ property, and other dishonest behavior.”