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 behavior raises significant legal, health, and occupational safety issues, not only in the context of the pandemic we have experienced, but also during the annual season of infectious diseases,” says Karolina Briliūtė, a lawyer at the AVOCAD law firm.
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 law does not explicitly prohibit working while sick, which can place an excessive burden of responsibility on employees and employers when regulating such situations in internal workplace policies. “For example, the Occupational Safety and Health Act imposes a duty on employers to take measures to ensure that the work environment complies with the requirements of occupational safety and health regulations, which may include the obligation to address situations preventing situations where employees come to work while sick and thereby pose a threat to the safety and health of other employees,” notes the AVOCAD lawyer.
She also notes that employees who work while sick, especially in cases of contagious diseases, not only endanger the health of their colleagues but also violate the principles established in the Public Health Care Act. “This law obligates employers and employees to contribute to ensuring public health, and working while sick hinders that. “The instruments specified in existing legislation are sufficient for a creative interpretation, allowing employers to establish stricter, clearer instructions in internal regulations,” notes the lawyer.
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 K. Briliūtė, in order to comprehensively address the challenges posed by“presenteeism,” Lithuania could consider legislative amendments that would establish legal consequences for non-compliance with such obligations and mechanisms for employees to anonymously report violations. “These provisions could be incorporated into the Labor Code or the Public Health Care Law, thereby creating a coherent legal framework that would ensure employee health and public safety. Strengthening these laws would promote a healthy work culture, reduce workplace risks, and ensure the well-being of employees and the public,” the lawyer emphasizes.