Diverticulitis and infection

It all depends on where you live and what you do.  If you are in the USA you should consider FMLA.  Regarding your DD you MUST see a doctor and get medication, as this has been going on more than 48 hours.  You will be in a far worse position employment wise if an infection has set in and you need medication or further hospitalisation.  In the meantime, stick to fluids only and get a good probiotic. 

Here is a summary of the law for the UK from the website below. http://www.rightsatwork.co.uk/employment-law/sickness-absences.html

I think your COPD might be considered an illness which falls within the Disability category .  If your collapsed lung was related to your COPD, the time you had off for it could be considered as being related to a disability.  However, you NEED to get your Union involved and SEEK legal advice, not just let your employer ride roughshod over you. 

Legal Effect of sickness absence

An employee who is absent due to sickness remains an employee until either they resign or the employer dismisses them.

Their sickness absence does not affect their entitlement to holiday pay.

They are not required to work, but do have a duty to remain contactable by the employer and to keep the employer informed.

Notification

An employer is entitled to require the employee to notify them by a particular time if they are going to be off sick.

An employer is entitled to ask for a self certification form if the employee’s sickness lasts more than 3 days and for a doctor’s note if it lasts more than 1 week.

Sick pay

If an employee’s contract does not provide for them to be paid whilst off sick then they are entitled to Statutory Sick Pay from the 4th day of sickness absence for a period of up to 28 weeks (after which they need to claim Incapacity Benefit).

An employer is entitled to seek information from an employee about their sickness and require them to attend meetings (if the employee is well enough to attend a meeting).

Disability and Reasonable Adjustments

If an employee has a disability, the employer should consider whether there are any “reasonable adjustments” which can be made which would enable the employee to return to work. In appropriate cases these might include allowing the employee to work from home or temporarily altering the working hours or allowing a “phased return” to work. For further information see Disability Discrimination

Dismissing an employee who is off sick

An employee who is off sick can still be dismissed and that dismissal will be fair provided the employer has a fair reason and acts reasonably by following the correct procedure.  See  “Unfair Dismissal” and in particular dismissal on the grounds of “Capability.”

To dismiss fairly it is normally necessary for an employee to be invited to a meeting. This should still be done, but in many cases the employee will be unable to attend a meeting. The employer should consider alternatives such as:-

1. Postponing the meeting if the employee is likely to be well enough to attend a meeting in the near future.

2. Arranging a home visit to meet at the employee’s home (this would normally be presented as an option to the employee)

3. Allowing the employee to send someone on their behalf to attend the meeting

4. Conducting the meeting by way of a telephone call.

Dismissing an employee because of sickness

An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.

What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.

However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.

See “Dismissal on the Grounds of Capability.”

Where the employer has caused the employee’s sickness

In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.

In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.

Frequent short term sickness absences

An employee who has frequent short term absences can be dismissed fairly even if no one absence would be long enough to justify dismissal on its own. Before an employer can dismiss for this reason the employee needs to be told what level of sickness absence is not acceptable and given the opportunity to improve their sickness absence levels.

The employer should investigate whether or not the employee has a disability. If so, then it might be a “reasonable adjustment” for the employer to discount any sickness absences which are related to that disability. For further information see Disability Discrimination.

Some employers have a sickness absence management procedure which states the level of sickness absences which can be tolerated and provides a series of warnings to operate if the rate of sickness absence does not improve. The final stage is dismissal. This has the advantage to both parties of making it clear the levels of sickness absence which can be tolerated and the consequences of sickness exceeding those levels.

Definition of a “Disability”

The definition of disability covers anyone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The effect of an impairment is long term if it has lasted, or is likely to last at least 12 months or it is likely to last for the rest of the life of the person affected.

Examples of disabilities include diabetes, epilepsy, long term depression, and sleep apnoea. Severe disfigurement is also considered to be disability.

Some conditions automatically constitute disabilities even if they have not got to the stage where they have a substantial effect, these are HIV, Cancer and MS.

Duty to make “Reasonable Adjustments.”

The times when an employer is obliged to consider making reasonable adjustments includes:-

· When recruiting and interviewing for an employee

· When an employer becomes aware of an employee’s disability

· If an employee asks for adjustments to be made

· If an employee is having difficulty with any aspect of their job

· If an employee’s sickness record, length of sickness absence or delay in returning to work while off sick is linked to their disability.

In appropriate cases, reasonable adjustments could include:-

· Making adjustments to the employee’s duties

· Allowing the employee more time to carry out a part of their duties

· Adaptations to their work station, equipment or seating

· Adjustments to their working hours or breaks

· A phased return to work following illness

· Allowing the employee to work from home

· Allowing time off for treatment

· Access to facilities for the control of their condition

· Availability of written material in large print

· Disregarding disability related sickness absences when operating an attendance management programme

· More time to pass their probationary period

· Redeploy the employee to an existing vacancy

Not all these examples would be appropriate in all circumstances, the key question is whether the proposed adjustment is reasonable.  What is reasonable, may depend on:

· the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

· The extent to which it is practical for the employer to take the step;

· The financial and other costs which would be incurred

· The extent to which taking it would disrupt any of his activities;

· The extent of the employer’s financial and other resources;

· The availability to him of financial or other assistance

· The nature of the employer’s activities and the size of the undertaking;

Unfair Dismissal: Capability

This category covers the employee’s ability to do the job and unlike misconduct does not depend on any “fault” on the part of the employee. If an employee’s health or abilities are not up to the demands of the job then, provided the employer acts fairly, dismissal (with notice) can be justified.

Capability: Ability to do the job

If an employee is not doing their job in the way the employer requires the employer should investigate whether that is due to any lack of application on the part of the employee  (in which case disciplinary proceedings could be contemplated) or whether it is due to the employee’s lack of ability in one or more of the tasks required.

If the employer considers it to be due to any lack of ability, the employee must be informed of:-

1. How their work does not measure up,

2. The standards expected of the employee

3. A timescale to improve at the end of which the employer will assess the employee

4. Any support, training or advice available to the employee

As long as the employee is made aware in sufficient detail to enable them to know precisely what improvement is expected of them, and as long as they have been given a reasonable amount of time and a reasonable amount of support to enable them to improve, the employer is entitled to consider dismissal at the end of the improvement period if the employee has still not reached the standards expected.

At this point the employer should

1. Invite the employee to a hearing and letting the employee know in advance:-

1.1 The specific shortfalls in the standards of their work

1.2 That the decision could result in dismissal

1.3 The evidence to show the employee’s work is below standard

1.4 The employee’s right to bring a Union rep or work colleague to the meeting

2. If the employee is found not to have reached the standards required whether either:-

2.1 A further period of improvement should be allowed

2.2 There is a another vacancy within the employee’s abilities which the employee could fill

2.3 Dismissal is the appropriate conclusion

3. Inform the employee of the right to appeal.

The employer should ensure it complies with the requirement of the ACAS code of practice.

If the employer has a suitable vacancy this should be offered to the employee, the employee does not have the right to have their previous terms and conditions preserved, but the employee is entitled to the appropriate notice before they start the new role

If the employer decides to dismiss the employee is entitled to the appropriate notice of termination.

Capability: Sickness

An employee who is off sick for a prolonged period of time can be fairly dismissed if they are unlikely to be well enough to return to work within a reasonable time.

What amounts to a reasonable time depends on the nature of the job, the specific difficulties encountered by the employer in covering for the absence and the size and administrative resources of the employer.

However, even where an employer is easily able to cover the absent employee’s work and even where it costs the employer nothing to keep the job open, an employer is not expected to have to keep the job open indefinitely.

Before an employer can justify dismissing an employee for long term sickness they must:-

1. Investigate the employee’s sickness and specifically find out how long it is likely to be before the employee will be able to return to work

2. Arrange a meeting for the employee to respond to any information the employer has and put their point of view forward if they think their job should remain open longer

The investigation

The investigation is likely to involve speaking to the employee and carrying out some medical investigation. The employer can ask the employee to sign an authority to enable the employer to obtain copies of their medical records, and the employer can ask them to attend a medical examination. An employee is under no obligation to agree to these, but as long as the employer has attempted to carry out these investigations any subsequent dismissal is unlikely to be unfair.

It is important that the employer bears in mind at all times that if the employee is deemed to be disabled under the provisions of the Disability Discrimination Act, the employer is required to consider whether there are any reasonable adjustments that can be made to enable the employee to return to work. Both employer and employee need to be involved in these discussions: the employer best knows what he requires and the employee best knows his own restrictions.  When commissioning a medical report the employer should ask the Doctor to consider whether the employee is disabled and whether there are reasonable adjustments which would enable the employee to return to work. [See Disability Discrimination]

The meeting

1. Invite the employee to a meeting and let the employee know in advance:-

1.1 That the decision could result in dismissal

1.2 The medical evidence which the employer has obtained

1.3 The employee’s right to bring a Union rep or work colleague to the meeting

2. If the employer concludes that the employee is unlikely to be well enough to return to their job within a reasonable time the employer should consider:

2.1 Whether there are any vacancies which can be offered to the employee which the employee could do now or in the near future,

2.2 Whether there are any reasonable adjustments which could be made to enable the employee to return to work (if the employee is disabled)

3. Inform the employee of the right to appeal.

Notice of termination

An employee who is dismissed while off sick is normally entitled to their statutory notice pay at their full normal rate of pay, even though they are likely to be unable to work their notice and even where they are not entitled to pay whilst off sick. Statutory notice pay is one week’s pay for up to 2 years of their employment and after that one week for every year of their employment up to a maximum of 12 weeks. See Notice.

Where the employer has caused the employee’s sickness

In some cases, the employee’s sickness absence may have been caused by the employer, for example due to an industrial accident or industrial disease. This does not mean that the employer cannot fairly dismiss, although if the employee is claiming damages for the injury in a Court case they will also be able to claim their loss of employment if they are dismissed.

In cases where the sickness absence is caused by the employee’s treatment at work, the employer will be expected to investigate this and seek to resolve this before considering dismissal.

Frequent short term sickness absences

Strictly speaking this is likely to come under the “some other substantial reason” category.

The principles are similar to capability (ability to do the job) in that before dismissal the employee should be informed:-

1. The level of sickness absence which the employer considers cannot be tolerated long term,

2. If their sickness absence exceeds those levels

3. The employee should be given a period of time to improve their sickness absence record

4. If their sickness absence does not reach an acceptable level the employer is entitled to consider dismissal.

5. Before dismissal the employer should arrange to meet the employee to discuss the sickness absences and decide whether the employee’s sickness absence is likely to be within an acceptable level. If not the employer can dismiss but the employee will be entitled to their contractual notice.