Working while ill: legal challenges, employer and employee responsibilities
In Lithuania, workers have the right to paid sick leave, which is provided for and regulated in detail by law. Nevertheless, some workers choose to go to work even when they are ill.
"Such behaviour, not only in the context of the pandemic experienced and survived, but also during the annual infectious disease season, raises significant legal, health and occupational safety issues," says Karolina Briliūtė, a lawyer at the law firm AVOCAD.
She said that Lithuanian labour law provides for measures to ensure workers' health and regulate employers' obligations, but there are no explicit prohibitions on working when ill. This highlights the need for stricter or more creative application of existing laws and regulations, or for regulating such situations through internal workplace regulations to address what is known as "presenteeism". This is a situation where an employee loses productivity in the performance of his/her job functions at his/her workplace due to illness, injury or other objective circumstances. Nevertheless, even when ill, individuals often feel the need and desire to physically go to work.
Under Lithuanian labour law, employers are obliged to ensure the health and safety of their employees, as set out in the Occupational Safety and Health Act. This law obliges employers to implement measures to prevent risks in the workplace, including the spread of communicable diseases. By encouraging or allowing (or failing to prevent) sick workers to work, employers not only violate their obligations to ensure a safe working environment, but may also be in breach of the Labour Code of the Republic of Lithuania, which stipulates that employers have a duty to provide suitable working conditions and to ensure the well-being of employees.
Karolina Briliūtė notes that the legislation does not explicitly prohibit working when ill, which may place too much responsibility on employees and employers by regulating such situations in internal workplace regulations. "For example, the Occupational Safety and Health Act imposes an obligation on the employer to take measures to ensure that the working environment complies with the requirements of the occupational safety and health legislation, which may also include the obligation to regulate situations where employees go to the workplace when they are ill, thus endangering the health and safety of other employees," notes AVOCAD's lawyer.
She also notes that staff who work while ill, especially in cases of communicable diseases, not only endanger the health of colleagues but also violate the principles set out in the Public Health Act. "This law obliges employers and employees to contribute to public health, and working when sick hinders this. "The instruments in the existing legislation are sufficient for creative interpretation, allowing employers to set stricter, clearer instructions in their internal regulations," the lawyer notes.
Employers have a wide range of responsibilities to reduce the risks associated with sick workers in the workplace. They must ensure a clear sick leave policy, encourage employees to prioritise their health, and inform them of their rights and responsibilities, ensuring that employees are aware not only of their own health but also that of their colleagues. Employers should take proactive measures, such as health checks or favourable teleworking policies, especially in areas wherepresenteeismcan have serious consequences, such as the healthcare or food service sectors and areas where there is constant contact with individuals. Such provisions could be added to the Occupational Safety and Health Act or, through creative application of existing statutory provisions, elaborated in sub-statutory or internal legislation.
According to Briliūtė, in order to fully address the challenges posed bypresenteeism, Lithuania could consider amendments to legislation that would provide legal consequences for non-compliance with such obligations and mechanisms for anonymous reporting of breaches by employees. "These provisions could be included in the Labour Code or the Law on Public Health Care, thus creating a coherent legal framework to ensure workers' health and public safety. Strengthening this legislation would promote a healthy working culture, reduce risks in the workplace and ensure the well-being of workers and society," she stresses.