A study by Securex says the number of one-day absences has increased significantly. Is that problematic? Not necessarily. And what about sick bills: do you ask for one or best not? Find out all about it in this article.
According to a Securex study, the number of one-day absences has increased significantly. Cause: the abolition of the one-day sick bill for three non-consecutive days per year. That this also means absenteeism has increased overall is a bridge too far. But how do you implement a policy around this within the company? Read all about it in this article.
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An article in De Tijd reporting on a Securex study recently caused quite a stir in the (social) media. The study showed that the number of sick days for which no sick bill can be requested has increased significantly.
And so there was a cry of murder by Voka and others to repeal the ban on employers requiring a sick bill for the first three (non-consecutive) days of illness. That ban was introduced by law on Oct. 30, 2022, and went into effect on Nov. 28, 2022. Now, the attentive reader sees immediately that (an increase in) the number of one-day absences says nothing at all about the total number of sick days (and thus absenteeism) itself.
Lode Godderis of IDEWE immediately formulated some reservations about the Securex study in the De Tijd article and further nuanced this in an interview on Radio 1 the day after.
In this post, we reflect on the legal outlines within which an employer can still request a sick bill.
Above all, we dwell on its expediency and how you, as an employer, can make concrete use of it.
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It is a common misunderstanding, but prior to Nov. 28, 2022, it was not the case that the employee automatically needed a medical certificate to justify disability.
It was only required when a collective bargaining agreement or the labor regulations required it, or when requested by the employer. Read: before the change in the law, it was the employer who could determine whether or not he felt a medical certificate was necessary.
Even before the law was changed, many employers did not (or no longer) require a medical certificate for one day of disability. Figures on how many employers did and how many employees did not ask for a sick bill before the law was changed are not available to our knowledge. In any case, practice shows that employers who did not ask for a medical certificate for the first day of disability were not an isolated case.
And so, given that a lot of employers were already applying this, it is not obvious to measure the impact of the legal prohibition of requiring a medical certificate for the first three days of disability.
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The principle that the employer's policy determines whether a medical certificate is required for, say, the first day of disability will remain in place after Nov. 27, 2022.
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However, since November 28, 2022, the employer is no longer allowed to request a medical certificate before the first day of incapacity for work for up to three days a year. This is an exception to the general rule.
Suppose an employee is absent for two consecutive days due to illness, the employer can request a medical certificate for the second day of absence, but not for the first day of absence.
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The answer is: yes.
Except that employers who employ fewer than 50 employees on January 1 of the calendar year in which the incapacity occurs can derogate from this through a provision in a collective bargaining agreement or the labor regulations. Thus, this constitutes the exception to the exception.
If an employer with fewer than 50 employees does not provide anything in the labor regulations or in a collective bargaining agreement, he may not require a medical certificate for the first day of disability.
Ultimately, this is only a limited change from the situation before Nov. 28, 2022, as a medical certificate justifying the absence does not have to be presented automatically. The only change is that the employer cannot subsequently request a medical certificate if the labor regulations or a collective bargaining agreement do not provide for it.
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Just because you as an employer can legally request a sick bill from your employees does not mean you must.
There are good arguments to be made that it's better not to ask for a sick bill (at all). So won't people abuse it en masse? In our opinion, no. As an employer, you still have ample opportunities to curb abuse. Just think of the possibility of hiring a control doctor or, as an ultimum remedium, the termination of the employment contract because the employee is simply not available enough for the company.
Below we explain four arguments.
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A first argument is that one might recover faster by not requiring a sick bill. This would reduce the absenteeism rate, and thus the cost of absenteeism.
Why is that?
Well, if we assume that the need for a medical certificate discourages people from calling in sick, then you will reasonably impact not only the employees who are willing to cut corners. You will also impact the willing employee who feels too sick to work, but not yet sick enough to stay home. And then that employee would have to get a doctor's bill, too.
Consequence?
The willing employee comes to work sick, so he/she does not take the rest he/she/it should. Possibly as a result, the employee is out longer than that one day. In addition, there is a real possibility that that employee has infected a number of co-workers.
If you would not ask for a medical certificate, you increase the chances that the employee will take the necessary rest. The day after, the employee can return to work fit and able instead of being even sicker and having infected other colleagues. Evidently, the culture of the organization should also allow people to allow themselves rest based on the motto reculer pour mieux sauter.
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To explain this argument, we must first briefly interpret the study "A fine is a price" by Gneezy & Rustichini. The study was conducted in Israeli daycare centers, where the problem of late parents was faced. To stop that problem, they introduced a penalty system to motivate parents to pick up their child on time and thus bring about a change in behavior. The effects of that penalty system were studied by Gneezy and Rustichini.
What was the result of the penalty system?
One would expect that because of the fine, the number of latecomers would drop. Nothing could be further from the truth. Against all odds, the number of latecomers increased significantly! By introducing the fines, they had achieved just the opposite effect. And even worse, when they removed the fine system again, the number of latecomers (initially) did not decrease!
There are several hypotheses that can explain this effect, including the theory of the incomplete contract.
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Explanatory hypothesis 1: intrinsic motivation decreases
A first hypothesis is that one decreases intrinsic motivation among parents to arrive on time by betting on extrinsic motivation. Other studies have also shown this effect, that when one bets on extrinsic motivation, intrinsic motivation decreases permanently (cf. studies by Lepper).
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Explanatory hypothesis 2: transaction
A second hypothesis is that one turns a moral commitment (the employees of the daycare center sacrifice their time, and it is also precious, so I come on time) into a transactional commitment.
For example, working 15 more minutes brings me x EUR, while the fine costs me only x EUR. Nursery worker time becomes a commodity. And typical of commodities is that we want to take as much of it as possible.
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Explanatory hypothesis 3: theory of the incomplete contract
A third hypothesis is the theory of the incomplete contract. By introducing a penalty, one made the consequences very clear. Being late implies paying a penalty. That is the consequence. That (in the parents' perception) is the only consequence. Before the fine system, parents could not accurately assess what the consequences would be. In the most extreme case, parents who often arrive late may be told that there is no place for their child in the daycare center.
Conversely, because of the incomplete contract and the fact that parents cannot accurately assess the consequences of their behavior, they are just avoiding the undesirable behavior.
Let us now apply the theory of the incomplete contract to whether or not a medical certificate is required.
Suppose an employer never asks for a sick bill, not for one day, but not for a full month either. Would there be any employees who think that no consequence will be attached to this? That seems extremely unlikely. The work still has to be done. And when decisions have to be made in bad times, workers will be able to assess which workers will be able to stay and which will not. So the hypothesis is that by not (or even never) asking for a medical certificate, absenteeism goes down. Of course, the necessary preconditions for this must be met. If, for example, employees know that there are no consequences linked to frequent absences, this will probably stimulate the number of days absent. So there must be a certain culture and expectation that is consistent with the company's strategy.
The change in the law that no longer allows employers to request a sick bill for the first three days of illness has just instituted certain consequences, in our opinion.
Suppose an employer always requires a sick bill, but since Nov. 28, 2022, for the first day of absence, this is no longer allowed. This amounts to a de facto right to three days of absence per year. Why a right? In practice, the employer will have little control over this and can attach quasi-no consequences to any abuses. In other words, the employee has acquired great certainty regarding the consequences of sick leave for one day, namely quasi none.
And typically in law - as in commodities - people will exhaust their rights. The Securex study, for example, seems to demonstrate this. We can also refer to examples from current events. A president of the FGTB who himself applied the notional interest deduction because he could, while the FGTB fought against it. A president of the ACVV who had himself "fired" (which is a contradiction in terms) in order to benefit from the early retirement pension.
Based on this analysis, it could be argued that the "right" to three days of absence without a sick bill encourages short-term sick leave. This is indeed possible. But even then, you cannot simply state in the same breath that the three days of absence without a sick bill would be problematic.
That would be a bridge too far, because:
Going back to the theory of the incomplete contract, Domus Medica's proposal to allow three three-day absences per year without a sick bill seems problematic.
This is because it extends the certainty of the consequences for the employee, and it extends the "right" to be absent without a sick bill, a right that one will probably want to exhaust.
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Another argument we can put forward is that trust works both ways. And that when you sow trust, you will reap an environment of trust. Conversely, when you treat people like children, they are going to behave like children.
Trust is certainly a valid argument, but it is not always tangible. After all, what is the impact of trust in an engaged organization in terms of sales and profits, costs, etc.? Don't get me wrong, trust in the organization and its impact can be measured. But because it is not always tangible, this argument can be easily dismissed.
Therefore, we are going to look for more tangible arguments to get even the skeptics to think, especially those who think that not imposing a sick bill might work in another organization but certainly not in their organization.
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One of the strongest hypotheses to argue against the medical certificate is to explain the perspective of the treating physician.
In case of illness, people visit a primary care physician, which is usually the general practitioner. General practitioners are overworked and increasingly burdened with administration. General practitioners have - indirectly - the task of certifying whether or not an employee can go to work.
So what do you do as a family physician when someone is sick and requests a sick bill? Let us answer that question using an example.
A patient comes to the doctor's office. The doctor determines that the patient cannot go out to work for one to a maximum of three days. As a family physician, do you then prescribe one day or suddenly three days? As a family physician, you are already overstaffed. Do you then risk the patient being there again the day after and again the day after that? Perhaps not. And so, as a family physician, you write out a sick bill for three days rather than one day.
It is also from this perspective that we must frame Domus Medica's proposal, based on the article in De Tijd, to prescribe in the law that one can be absent from work for three times three days due to illness without a medical certificate can be requested by the employer.
Thus, the conclusion of this argument is, if you as an employer do not ask for a medical certificate, there is no treating physician prescribing an excessive period of illness. As soon as the employee feels better, the employee will return to work.
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Every company should have HR and payroll policies that are consistent with the company's business strategy and matched with its culture and individuality.
Completely abolishing the sick bill just from one day to the next, regardless of the length of absence, is not a thoughtful approach.
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If you want to get started on this as a company, the first thing you need to do is map out your business strategy and HR and payroll strategy.
Why?
Because you need to know which measures are or are not consistent with the company's vision, strategy, values and context. Saying A and doing B doesn't work. And so how you put that strategy into practice (what you do) must align with your company's strategy (what you say).
This also means that you cannot simply start copying another company's policies within your own organization. Of course, you can get inspiration by looking over the wall, but be aware that each company has its own history and context and is therefore essentially different.
Each business must have its own approach, which brings us to the next step.
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You do well to collect data from the start and analyze that data.
In itself, that analysis provides insight into the organization. In addition, that measurement also acts as a baseline. When you change your policy, you can measure (to what extent) the changed policy is effective in achieving your goals. In other words, you can chart the return on your investment.
Is the changed policy successful? Then you can capitalize on it and take follow-up steps. If, on the other hand, the changed policy is not successful, then you can start making adjustments accordingly.
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All too often, companies take a certain path with their HR and payroll policies that they cannot go back on afterwards.
Try to avoid this!
There are plenty of opportunities to launch pilot projects within the company - whether you are an SME or a multinational, whether you have social consultation bodies within the company or not - and evaluate them before rolling out the modified HR and wage policy for an indefinite period of time throughout the entire company. This obviously requires a good communication strategy to the employees and/or social partners.
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