Absenteeism from work is a problem of concern to companies. One of its main causes is temporary incapacity, so it is common for organizations to consider implementing protocols to verify the employee’s state of health, in which the possibility of contacting the employee is contemplated. But can companies call employees on sick leave?
According to the latest report on absenteeism published by Ranstad with data from fourth quarter of 2023, absenteeism, generally speaking has caused the loss of 6.5% of agreed hours and absenteeism derived from temporary incapacity of 5%. According to this report, in the fourth quarter of 2023, an average of 1,400,423 employees were absent from work each day; 1,075,073 of them due to temporary disability.
This impact of temporary incapacity on absenteeism has led companies to implement protocols for monitoring temporary incapacity, that typically include the provision of calling employees during sick leave to check up on them. However, this is only possible under certain circumstances.
During the situation of temporary incapacity, the employment relationship is suspended, and the parties are released from their reciprocal obligations to work and pay for work, but the contractual relationship continues to exist, and the rest of the rights and obligations arising from it continue to apply.
Specifically, during periods of temporary incapacity, the rights of companies and employees, as set out in articles 20 (management and control) and 20 bis (privacy in the digital environment and digital disconnection) of the Workers’ Statute, remain in force.
Pursuant to these articles, companies can adopt the measures they deem most appropriate for surveillance and control and can verify the state of health of the employee that is alleged by the latter to justify his or her absences from work. Simultaneously, employees maintain their rights to privacy and digital disconnection.
In addition, the Organic Law 3/2018, of December 5, on Personal Data Protection and guarantee of digital rights expressly recognizes the right to digital disconnection, establishing that the modalities of exercising this right will be subject to the provisions of collective bargaining or, failing that, to what has been agreed between the company and the workers’ representatives. The same rule provides that the employer, after hearing the workers’ representatives, will draw up an internal policy defining the modalities for exercising the right to disconnection and the training and awareness-raising actions for the staff.
Consequently, according to these regulations, companies can establish internal policies to control the state of health of the employee in a situation of temporary disability, and the following question arises: how far does the company’s right of control extend during the situation of temporary disability?
The answer depends on the type of calls from the company to the employees. For the Superior Court of Justice of Galicia (judgment of April 11, 2024), the simple call to inquire about their state of health, which does not imply for the employees the need to connect through the devices made available by the company (computers, company cell phones, tablets, etc.) or access corporate software, does not violate the rights to privacy and digital disconnection.
Specifically, this court considers that the employer’s calls made following the protocol established by the company, which were not intended to coerce, ask the employee to return to his job, or to know the cause of his absence, do not violate the right to privacy or digital disconnection. In reaching its conclusion, the court considered that, in the action protocol analyzed, if the employee did not answer the first call, the company did not try again, and did not call again if the employee asked not to be called in the future.
Therefore, companies that have action protocols for monitoring the temporary disability of their workforces, or intend to do so, should consider the scope of the right to privacy and digital disconnection of the employee on sick leave.
