Presenteeism - working while sick

Solution approaches and legal framework 

Go to work despite illness?

Presenteeism - frequently practiced, universally known - but far away from healthy! 

Presenteeism is the phenomenon of continuing to work despite symptoms of illness. The motives are complex, the forms numerous. "Workahomeism", a form of presenteeism that became almost a matter of course during the Covid 19 pandemic, describes working in the home office despite illness.¹⁾ Studies show that presenteeism behavior has changed since the pandemic.

What motivates workers to engage in presentist behavior instead of curing their illness? 

A distinction can be made between personal, work-related and organizational factors²⁾ :

• Person-related factors range from individual attitudes toward work (work motivation, commitment, work engagement) and emotional attachment (affiliation) to difficulties with boundaries and fear of job loss. For individuals, presenteeism often leads to exacerbation of illness, reduced work performance and contagion to others. Nevertheless, many affected individuals do not want to "abandon" their colleagues. This attitude and the associated actions usually receive a positive behavioral assessment from managers and colleagues, which reinforces a negative behavioral spiral.
• Work-related factors are mainly found in massive time and performance pressure and unrealistic targets. Low replaceability, minimal resources, close work interdependence and cooperation bottlenecks play a major role. In addition, leadership obligations and role conflicts can fuel presenteeism, especially when there is no clear handover of responsibility in the event of illness.
• Organizational structures and regulations increase performance dynamics and thus promote presenteeism. These include unclear or non-existent substitution agreements, formal or informal attendance pressure and non-existent behavioral agreements regarding working time systems and work locations (remote work, home office). Absenteeism and sick return talks can exert additional pressure on employees who are ill.

 

Presenteeism - a "hot topic" with increasing urgency 

Many companies have seen a decline in the number of sick days and days of incapacity to work in recent years. However, if available study results are considered, it quickly becomes clear that looking at sickness rates alone is no longer sufficient. According to a study published in 2022³⁾ , 56.9% of respondents said they sometimes work even though they are sick. 26.6% reported doing so frequently or very frequently. The consequences of this are reduced employee well-being and satisfaction as well as long-term losses in the company's performance and productivity.

The decrease in the number of days of incapacity to work should therefore not be interpreted as a positive development: It could also mean an increase in presenteeism days. Accordingly, not only absenteeism (absenteeism, incapacity to work) but also presenteeism should be introduced and monitored as an operational indicator. For example, the inclusion of questions on presenteeism behavior in employee surveys could help companies to better assess employee health and manage it in a more target group-oriented manner (Techniker Krankenkasse Hamburg, 2022).

 

What are the possible solutions for companies? 

The decision to work despite illness is primarily based on self-determined motivation. Therefore, employees must be structurally protected from the consequences of presenteeism. According to current research, active occupational health management (OHM), an appreciative corporate culture and adequate leadership behavior are the best prevention.

To protect against presenteeism, company health measures should focus on raising awareness and building up individual health skills. Appropriate information and communication initiatives as well as further training programs are particularly suitable for this purpose. In addition, an appreciative working atmosphere, fair remuneration structures and transparent decision-making processes help to prevent presenteeism, as employees are less concerned about negative assessments or even dismissals.

A clear understanding and appropriate leadership behavior is required in the face of incapacity to work and time off. Managers should discourage presenteeism, act as role models themselves, actively communicate values to internal and external stakeholders, and make clear behavioral agreements - especially regarding illness in the home office. It is precisely the verbalization of these measures that is of great importance. The fair and appropriate distribution of resources and tasks, as well as the introduction of clear substitution rules, can take the pressure and guilt off employees.

 

What is the legal framework?

From the perspective of social insurance law, the term "sick leave" as used in common parlance refers to a state of incapacity to work as a result of illness. Illness is defined as an irregular physical or mental condition that necessitates treatment. From the point of view of labor law, however, it is not a question of the necessity of sickness treatment, but of the existence of an inability to work.

An employee is prevented from working if and as long as he/she is unable to perform his/her work due to illness or an accident, or if he/she is only able to do so with the risk of deterioration of his/her state of health. The assessment of the (in)ability to work (sick leave) is incumbent on the attending physician, although the attending physician will usually not know which work is covered by the employee's scope of activity.

 

Is there a partial sick leave?

No, the relevant statutory regulations (§ 8 AngG or § 2 EFZG) do not currently provide for the possibility of "partial sick leave" or "piecemeal sick leave". An "all-or-nothing principle" applies: employees cannot be partially fit for work, but only either fit for work or unfit for work. This applies with regard to both the content and the time component. This means that if the actual activity cannot be performed (completely), it is not relevant to the question of incapacity for work that simpler activities could possibly be performed. There is also no such thing as "part-time sick leave": a person is (un)able to work for the whole day, and no time restriction is permissible. Only a few hours of sick leave per day are therefore not possible.

Note: Part-time reintegration for employees who have been ill for a longer period of time is also not a case of partial sick leave, but rather a reduction in working hours for the purpose of maintaining the long-term ability to work.

 

May financial incentives be provided for reduced absenteeism?

Since employees should not be induced to jeopardize their state of health for financial reasons, case law regards so-called pure attendance bonuses (as a reward for no or low absences) as impermissible. Employees may not suffer any economic disadvantage as a result of sick leave or other justified absences from work. The so-called loss of earnings principle applies to the continued payment of remuneration for periods of non-performance, whereby employees are placed in the same position as if they had actually performed the work lost.
 

What applies when working in a home office?

The legal framework applies to work in the home office just as it does in the office. In practice, however, the performance of work in the home office is a way of maintaining the ability to work if, for example, only the commute to work is unreasonable due to an injury, but the work per se can still be performed. However, this is only a solution for those cases in which the work can be performed from home without risk of deterioration for the health condition. It should be noted that home office must always be agreed in writing between the employee and the employer.

 

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Autorinnen: 

Kerstin Tomancok
People in Change – People & Organisation

kerstin.tomancok@bdo.at
+43 5 70 375 - 1384 

 

Julia Mäder 
Arbeits-, Sozialversicherungs- und Lohnsteuerrecht
    
julia.maeder@bdo.at
+43 5 70 375 - 1521

 

 

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