An employee’s justified absence from work may serve as grounds for immediate termination of their employment contract under Article 53 of the Labour Code.

A specific protective period must have passed. The length of the protection depends primarily on the reason for the absence.

Length of Employment

In cases of absence due to illness, the protective period depends on the employee’s length of service with the employer. An employee with less than six months of service cannot be dismissed during the first three months of an incapacity to work. The period of incapacity itself does not count toward the employee’s length of service, which is relevant for the potential termination.

An employee with longer service is protected during the entire period of sick pay, sickness benefits, and rehabilitation benefits for the first three months. Regardless of the length of service, similar protection applies to employees whose incapacity to work is caused by a work-related accident or occupational disease.

Starting Date of Incapacity

The protection period generally starts on the day when the employee receives a medical certificate confirming their incapacity to work. However, if the certificate includes the day it was issued, and this occurred after the employee had already finished their workday and completed their assigned work, then the protection period begins on the following day.

Protection for Employees with Less than Six Months of Service

The three-month protection period for an employee who has been employed for less than six months and is unable to work due to illness can result from one or more illnesses, but it must be uninterrupted. Even a single day’s break in incapacity resets the protection period.

If there are days off (e.g. weekends) between one sick leave and the next, during which the employee did not work, the employer may treat those days as part of the incapacity period and include them in the protection period. However, in the event of a legal dispute, establishing incapacity during days off may require expert testimony.

Protection for Employees with At Least Six Months of Service

The protection period for an employee with at least six months of service lasts for the combined period of sick pay, sickness benefits, and rehabilitation benefits for the first three months. The maximum period for receiving sick pay and sickness benefits is 182 days, and in the case of tuberculosis, 270 days.

Periods of incapacity due to the same illness are added together if the break between them is no longer than 60 days. If the break is longer, the protection period restarts. If different illnesses are involved, the period will start anew on the first day of the break.

After the sick benefit period ends, the employee can apply for rehabilitation benefits. The first three months of receiving these benefits are included in the protection period. It is advisable to submit an application for rehabilitation benefits to the Social Insurance Institution (ZUS) a few weeks before the sickness benefit period expires. If ZUS grants the benefit, the protection period is extended by three months. If the benefit is denied, the employer has the right to terminate the employment contract after the sickness benefit period ends.

If the employer terminates the contract after the sickness benefit period but before a decision is made about the rehabilitation benefit, they risk the employee challenging the termination if ZUS later grants the benefit.

Other Reasons for Absence

Protection against dismissal under Article 53 of the Labour Code also applies to employees receiving care allowance (for 60 or 30 days) or a benefit for isolation due to an infectious disease (up to 182 days). For other justified absences, the protection period is one month.

Union Consultation

If a trade union representing the employee operates at the employer’s premises, the termination of the employment contract without notice should be preceded by consultation with that trade union, though their opinion is not binding.

Termination of Employment

From the day following the end of the protective period, if the employee remains absent from work, the employer may terminate their employment contract without notice.

If the employee’s absence from work was due to illness and lasted more than 30 days, simply returning to work does not protect the employee from dismissal. The employee must undergo a medical examination. If the examination confirms their incapacity to work, the employer may terminate the employment contract.

Re-employment

The employer should, as far as possible, rehire an employee who returns to work within six months of the termination of their contract, immediately after the cause of their prolonged absence ends. This obligation also applies to employees receiving rehabilitation benefits, if they return immediately after exhausting those benefits, even if this occurs more than six months after the termination of their employment.

In response to the employee’s request to return, the employer must determine whether they have a vacant position matching the employee’s qualifications and health status. If not, the employer may refuse to rehire the employee.