Employers sometimes abuse the system, too

The Malta Employers’ Association has clearly stirred a hornet’s nest with its proposals to curtail sick leave in certain circumstances.

Among other things, the MEA proposes that “absenteeism from work due to self-inflicted unfitness for work including, but not limited to, drunkenness, hangover, sunburn, sun-strokes, and sports injuries will not render the employee entitled to sick-leave, even if the employee is certified by his own doctor as unfit for work.”

Predictably these proposals have been lambasted by unions as dictatorial and insensitive. The Forum Unions Maltin also retorted that MEA roundly exonerates its own members from the same principles: just as measures should be taken to combat fraudulent sick leave, employers themselves must also be conscious of the need to avoid exploitation of their workers.

But as is often the case, the MEA’s proposals do stem from a broadly understandable concern. It would be facile to argue (and indeed no one has done so) that the MEA has no business at all to be concerned with abuse of the sick leave system. Any employer will confirm that such abuse periodically takes place, and the sum total of its cost in terms of productivity is not to be underestimated. It is partly for this reason that applications for sick leave must usually be endorsed by a medical opinion to the effect that the applicant is indeed unfit for work.

This brings us to the first of many objectionable aspects of MEA’s proposals. If the association gets its way, eligibility for sick leave will no longer be determined by a medical doctor. This raises the question of who, in practice, will get to make the final decision. Surely the MEA is not suggesting that the employer should be the one to decide, in defiance of medical opinion.

To argue as much would be to turn back the clock to a time (not that long ago) when employees had no rights at all, and depended exclusively on the benevolence of their employers for their survival. At the stroke of a pen, we would have undone all the post-war achievements in industrial legislation, and returned to a time when exploitation was the norm rather than the exception.

But the suggestion that employers should be entitled to override medical opinion also overlooks a crucial detail about the rights of employees. Contrary to a widespread misinterpretation of the law, an employer has no right to information concerning employees’ state of heath. This is precisely why the insistence of medical certificates is so important. Health concerns are by definition private and sensitive data, and information about them is therefore restricted only to those who are professionally bound by confidentiality – i.e., doctors.

In fact, the sick leave application form itself does not inform the employer of the precise medical condition: it limits itself to a doctor’s signature, which in turn implies that the reason has been examined by a medical professional, and deemed to be serious enough to merit sick leave.

Does this system give rise to abuse? In some cases, the answer would almost certainly be yes. But the answer should surely be to clamp down on individual cases of abuse… not to shift responsibility away from doctors altogether. Otherwise, workers may find themselves exposed to additional risks: an employer may discover that his or her employee suffers from a chronic condition that may affect performance in future… and, armed with this knowledge, may seek pretexts to unfairly terminate employment.

This in turn points towards another problem with the MEA’s position. As indicated by the Forum, the association has so far not reacted to recent revelations of abuse by employers at the expense of their staff. It has emerged, for instance, that female candidates for jobs in the teaching profession are often asked – illegally – if they plan to have children in the future. This is tantamount to an invasion of privacy along the same lines as access to medical records would be in other circumstances. There are good reasons for this sort of interview question to be off-limits: it creates an automatic barrier to employment for a category of worker that accounts for roughly half the population.

Yet not only has the MEA failed to address the serious issue of ongoing abuse of the system by certain employers: it now seems to be suggesting that employers should be given even more powers which could, in turn, very easily be abused.

On a separate level, the proposals also betray a regressive mindset when it comes to eligibility to social services. To argue that ‘sports injuries’ are self-inflicted is absurd. It is widely known that sport and exercise in general are vital to long-term health prospects. Using the same logic: if people who never do any exercise at all suffer from health issues that render them unfit for work, they would be considered just as ‘responsible’ for their health problem as those who injure themselves while playing football or squash.

Ultimately the issue boils down to a question of how to properly tackle abuse. Employers are certainly entitled to demand greater vigilance against employee fraud. But the same employers cannot also expect to be immune from such vigilance themselves.