Sick Days — Medical Examination at the Employer's Request and Dismissal During Sick Leave

Introduction

Sick days are one of the most fundamental and important rights of workers in Israel. Illness is a condition beyond the worker's control, and the law recognises that a sick employee is entitled to be absent from work and to receive payment for days of absence while being protected in their position. Nevertheless, the legal and practical reality surrounding sick days is complex and raises many questions: is the employer permitted to send the employee for a medical examination? Can an employee be dismissed for prolonged absence due to illness? What are the rights and obligations of each party?

This article will provide a deep and comprehensive analysis of the legislative and legal framework governing sick days in Israel, examine employer authority with regard to medical examinations, and review the statutory and judicial protections against dismissal during sick leave. The information is based on Israeli law, the rulings of labour courts, and accepted legal practice.

The Legislative Framework: The Sick Pay Law

Fundamental Principles

Employee rights with respect to sick days are anchored in the Sick Pay Law, 5736–1976. The law establishes that a worker absent from work due to illness is entitled to sick pay, thereby protecting the employee from loss of income during a period when they are unable to work for health reasons. The primary purpose of the law is to allow workers to recover from illness without fear of losing their livelihood or their job.

Definition of Illness

The Sick Pay Law defines "illness" broadly, encompassing any health condition that prevents the employee from performing their work. The term includes both physical and mental illnesses, as well as injuries and accidents. Case law has extended the concept to situations where the worker themselves is not ill but is required to care for a sick family member in certain circumstances, although this entitlement is more limited.

Scope of Entitlement to Sick Days

A full-time employee accumulates sick days during their period of employment at a rate of one and a half days per month of work, meaning 18 sick days per year. A part-time employee accumulates sick days in proportion to their scope of employment. It should be noted that the accumulation of sick days is capped at 90 days, and beyond this quota the employer is entitled to cancel unused days.

Rate of Payment

Payment for sick days varies according to the number of accumulated sick days standing to the employee's credit:

• An employee who has accumulated fewer than 90 sick days is entitled to 50% of their wages for the first sick day, and 100% of their wages from the second day onwards.
• An employee who has accumulated 90 or more sick days is entitled to 100% of their wages from the first sick day.

The calculation of wages for sick pay purposes is based on the fixed salary, which includes all fixed components of remuneration and excludes one-time payments or variable bonuses.

Preliminary Condition: Medical Certificate

The Sick Pay Law stipulates that a condition for entitlement to sick pay is the presentation of a medical certificate attesting to a health condition that justifies absence from work. The certificate must be issued by a qualified physician and must specify the required period of absence. The employer is entitled to demand the certificate from the very first day of illness, although in practice many employers permit absence of one or two days without a formal medical certificate.

Medical Examination at the Employer's Request

The Legal Basis

One of the central questions in the context of sick days is whether the employer is permitted to send an employee for an additional medical examination on their behalf, beyond the medical certificate the employee presents. This question generates tension between the employer's right to verify the legitimacy of the employee's absences and the employee's right to medical privacy and bodily autonomy.

The Sick Pay Law does not expressly address the employer's authority to demand an additional medical examination. However, case law and accepted practice have recognised the employer's limited right to send an employee to be examined by a physician of their choosing, under certain conditions.

Conditions for Sending an Employee for a Medical Examination

The labour courts have established that an employer is permitted to require an employee to undergo a medical examination on their behalf, but only in certain circumstances and subject to significant limitations:

Reasonable suspicion of fraud or feigning illness: the employer must point to substantive and concrete grounds giving rise to a reasonable suspicion that the employee is not genuinely ill or is abusing sick days. General suspicion or gut feeling is insufficient. For example: an employee who regularly absents themselves on Fridays backed by sick certificates, or an employee observed engaging in active sporting activities while reporting an illness preventing them from working.

Prolonged or repeated absence: in cases of particularly extended absence or frequent and recurring absences, the employer may be justified in requesting a further examination in order to understand the employee's health status and plan for continued employment.

Fairness and proportionality: the examination must be reasonable and fair. The employer is not permitted to send the employee for invasive, humiliating, or irrelevant examinations unrelated to the claimed illness. The examination must focus solely on the question of whether the employee is capable of performing their work.

Limits on the Use of Medical Examinations

It is important to emphasise that the employer cannot use medical examinations as a means of harassment, intimidation, or pressure on employees. Repeated referrals to medical examinations without objective justification may be regarded as an affront to the employee's dignity or as harassment, and may constitute grounds for a claim by the employee.

Furthermore, the employer is not permitted to impose sanctions on the employee merely because the examination by their physician produced findings different from those of the employee's own physician. Disciplinary measures or dismissal based solely on a conflicting opinion, without additional evidence of fraud or misconduct, are likely to be regarded as unlawful.

Dismissal During Sick Leave

The Basic Statutory Protection

The question of whether an employer is permitted to dismiss an employee who is absent from work due to illness is complex and sensitive. Israeli law provides significant protection for sick employees, but this protection is not absolute.

The Equal Opportunity in Employment Law, 5748–1988, prohibits discrimination in employment on the grounds of disability or health status. Dismissing an employee solely because they are ill constitutes unlawful discrimination and wrongful dismissal. However, if illness and prolonged absence genuinely and demonstrably impair the employer's ability to manage their business, this may justify dismissal, but only subject to certain conditions.

Conditions for Justified Dismissal During Sick Leave

The courts have established that dismissal of a sick employee may be justified only in exceptional circumstances — for example, where the place of employment permanently ceases to operate, or where the business becomes insolvent. A further situation in which the employer may dismiss the employee is where the employer gave the employee notice of dismissal before the employee fell ill and was absent from work.

Employee Rights in the Event of Dismissal During Sick Leave

An employee dismissed during sick leave or due to absence on account of illness is entitled to a number of rights and protections:

Entitlement to severance pay: the employee is entitled to full severance pay in accordance with their seniority, in addition to all accumulated social rights (annual leave, recuperation pay, and so on). If the dismissal was unlawful, the employee is entitled to additional compensation.

Compensation for wrongful dismissal: if the court determines that the dismissal was unlawful, the employee is entitled to significant compensation, which may include the wages the employee would have been entitled to but for the dismissal, as well as compensation for distress and affront to dignity.

Discrimination claim: if the dismissal was motivated by discrimination on grounds of health status or disability, the employee may file a claim under the Equal Opportunity in Employment Law, which includes additional compensation.

Special and Complex Situations

Work Accident

An employee injured in a work accident or who has contracted an occupational disease is entitled to enhanced protections. The National Insurance Institute compensates employees injured at work, and they are entitled to benefits and occupational rehabilitation. The employer must cooperate with the process and is not permitted to dismiss an employee injured at work except in exceptional circumstances.

Absence Due to Illness of a Family Member

In certain situations, an employee is entitled to be absent from work in order to care for a sick family member. This entitlement is limited and circumstance-dependent: it generally concerns a parent of a young child who has fallen ill, or exceptional situations involving a family member in need of urgent care. Case law has established that in such situations, the employee is entitled to be absent and to receive payment from their accumulated sick days, subject to presentation of a medical certificate relating to the family member.

Chronic Illness and Disability

Employees with chronic illnesses or disabilities are entitled to reasonable accommodations in the workplace. The Equal Rights for Persons with Disabilities Law, 5758–1998, requires employers to make reasonable accommodations to enable employees with disabilities to continue working. Such accommodations may include changes to working hours, adaptation of equipment, or modification of the role. Only if the accommodations are unreasonable (meaning they involve disproportionate cost or effort) may the employer be exempt from carrying them out.

Exhaustion of Sick Days and the Right to Sick Pay from the National Insurance Institute

An employee who has exhausted all their accumulated sick days and continues to be ill may be entitled to sick pay from the National Insurance Institute. This entitlement is subject to certain conditions, including prolonged absence and the presentation of medical certificates. Sick pay from the National Insurance Institute is lower than full wages and is designed to provide a basic safety net.

Practical Tips for Employees

Documentation and Organisation

Keep meticulous records of all your sick days, the medical certificates submitted, and correspondence with the employer. Good documentation will assist you in the event of a future dispute. Also retain copies of pay slips to verify that the employer has paid you correctly for sick days.

Open Communication with the Employer

Maintain open communication with the employer. Keep them updated on your condition, the prognosis for recovery, and the estimated date of return to work. Good communication can prevent concerns and disputes.

Obtaining Detailed Medical Certificates

Ensure that the medical certificates you receive are detailed and clear, and specify the exact period of incapacity. A vague certificate may result in rejection of a claim for sick pay.

Consulting a Lawyer in Time

If you believe the employer is acting unlawfully — whether by refusing to pay sick pay, demanding unreasonable medical examinations, or threatening dismissal — consult an employment lawyer as early as possible. Early recourse can prevent escalation and protect your rights.

Practical Tips for Employers

Establishing a Clear Procedure

It is advisable to establish a clear and transparent procedure for handling sick days, including requirements for medical certificates, policy on medical examinations at the employer's request, and the process for managing prolonged absences. A written and published procedure will prevent misunderstandings and disputes.

Accurate Documentation

Keep accurate records of all absences, medical certificates, and correspondence with employees. Good documentation will help you defend yourself in the event of a claim.

Acting in Good Faith

Act in good faith and fairly towards sick employees. Demonstrate patience and consideration, and seek ways to assist the employee in returning to work. A humane and respectful approach is not only ethically correct, but may also reduce legal risks.

Legal Consultation Before Dismissal

Before deciding to dismiss an employee due to absence on account of illness, consult an employment lawyer. A lawyer will help you assess the risks, ensure that you have exhausted all alternatives, and carry out the dismissal in the least problematic manner if there is truly no other option.

Reasonable Accommodations

Seriously consider the possibilities of reasonable accommodations for employees with disabilities or chronic illnesses. Investing in accommodations may retain an experienced and dedicated employee.

Conclusion — Balancing Rights and Obligations

Sick days and dismissal during sick leave are sensitive matters requiring a delicate balance between employees' legitimate right to be absent due to illness and to receive protection against dismissal, and employers' legitimate right to manage their businesses efficiently and protect themselves against abuse. The law and case law in Israel provide important protections for sick employees, but do not grant absolute protection in extreme cases.

Employees must understand their rights and stand by them, while acting in good faith and presenting properly issued medical certificates. Employers must act fairly and in good faith, exercise patience and consideration, and seek legal advice before taking drastic steps. Ultimately, open dialogue, good communication, and a humane and respectful attitude can prevent many disputes and maintain healthy and fair employment relations.

If you are dealing with a situation of illness at work — whether as an employee or as an employer — it is advisable to seek the professional guidance of an employment lawyer in order to understand the legal situation, your rights and obligations, and the best ways to proceed. Accurate and up-to-date legal information is the best tool for protecting your interests and preventing unnecessary disputes.

Questions and Answers

1. Is the employer permitted to demand a medical certificate from the very first day of illness?

Yes, legally the employer is permitted to demand a medical certificate from the first day of illness. The Sick Pay Law stipulates that a condition for entitlement to sick pay is the presentation of a medical certificate, and the law does not restrict when it may be demanded. In practice, however, many employers operate a more flexible policy and permit absence of a day or two without a formal medical certificate. Such a policy is a matter of the employer's internal discretion and not a statutory obligation.

2. Am I required to agree to undergo a medical examination at the employer's request?

Not necessarily. The employee is entitled to refuse to undergo a medical examination at the employer's request, particularly if there are no reasonable grounds for the demand. The employer may require such an examination only if there is real and substantiated suspicion of fraud, or in circumstances of particularly prolonged absence. An unjustified refusal may reflect negatively on the employee, but if the refusal is reasonable and in good faith, it cannot serve as grounds for dismissal or disciplinary action. It is advisable to consult a lawyer before refusing an examination.

3. Who pays for the medical examination the employer requires?

The employer must bear all costs associated with the examination they require, including the physician's fee, travel costs, and work hours lost due to the examination. The employee should not pay anything for an examination arranged by the employer.

4. Is it permissible to dismiss an employee who has been absent for two months due to illness?

Generally, no. An absence of two months is not considered prolonged enough to justify dismissal, particularly where there is a prognosis for recovery and return to work.

5. Am I entitled to sick pay if I fall ill during annual leave or during the notice period?

If you fall ill during annual leave, the days of leave that coincided with the illness will be counted as sick days rather than leave days, provided a medical certificate is presented. In this way the leave is preserved and can be used in the future. Regarding illness during the notice period — an employee who falls ill during the notice period is entitled to sick pay, and the period of sick days will not be counted as part of the notice period. In other words, the notice period is "frozen" during the illness.

6. Does a mental illness entitle a worker to sick days in the same way as a physical illness?

Yes, mental illnesses entitle a worker to sick days in exactly the same way as physical illnesses. A medical certificate from a psychiatrist, a qualified clinical psychologist, or a family physician attesting to incapacity for work due to mental illness is fully valid.

7. Am I required to tell my employer what illness I have?

Not necessarily. You are required to present a medical certificate attesting to your incapacity for work, but you are not required to disclose the full details of the illness. The medical certificate must include the period of incapacity, but need not necessarily state the precise diagnosis. Your right to privacy is protected under the Privacy Protection Law and the Patient Rights Law. However, in cases of prolonged or complex absence, cooperating with the employer and providing a general explanation of the situation may help to prevent concerns and disputes.

8. Is the employer entitled to deduct sick days from my severance pay?

No. Accumulated sick days are not part of severance pay and are not paid out upon termination of employment. Sick days are a right that is realised only when the employee is actually absent due to illness. If the employee did not use their sick days, they are not entitled to payment for them upon leaving, and therefore there is nothing to deduct.

9. What do I do if the employer does not pay me sick pay?

If the employer refuses to pay sick pay despite the fact that you have presented a valid medical certificate, you should proceed as follows: first, send the employer a written communication (by email or registered letter) demanding payment of sick pay and specifying the days and amounts. Keep a copy of the letter and the medical certificate. If the employer does not pay within a reasonable period, contact an employment lawyer. The lawyer can send a legal demand letter and file a claim with the labour court if the employer continues to refuse.

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