In April 2019, when the Court of Bosnia and Herzegovina passed judgment number S1 3 U 028800 18 U, in which it took the position that employers (as interested persons) do not have the right to collect data containing medical diagnoses, types, method and period of providing medical services for employees, considering that it was an unauthorized collection of personal data, it seemed that the employers were facing an insurmountable systemic problem. From an insurmountable systemic problem to the looming end of sick leave abuses in Bosnia and Herzegovina, it took more than three years of continuous struggle employers, which is still ongoing. What has changed in these three years?
Extraordinary control of incapacity for work in the Republic of Srpska
Aware of the fact that the judiciary very strictly interprets the justified interest in accessing workers’ personal data, employers directed their actions towards normative changes at entity levels. In February 2022, Republic of Srpska takes a big step by adopting amendments to the Rulebook on Exercising the Right to Wage Compensation during Temporary Incapacity for Work, in which the institute of extraordinary assessment of temporary incapacity for work of workers is introduced for the first time. If the employer believes that an employee who is temporarily unable to work unjustifiably uses the right to compensation for wages during temporary incapacity for work or leaves his place of residence without justification, he can submit a request to the Health Insurance Fund of the Republic of Srpska to carry out an extraordinary assessment of the insured person’s temporary incapacity for work. In the request, the employer is obliged to state, explain and document the reasons for which it is being submitted. In the process of determining the validity of the employer’s request, the Commission is obliged to examine the insured and inspect the health record and existing medical documentation, after which it determines whether the employee is fit for work or not. It is interesting to point out that the Rulebook stipulates that the insured person of the Fund who does not respond to the Commission for the extraordinary evaluation of temporary incapacity for work, the Commission will give the evaluation “fit for work from the next day”.
According to the data of the Health Insurance Fund of the RS in the period February – April 2022, 18 employers requested an extraordinary assessment of sick leave for 26 workers. In just two months, ten workers were returned to work, because an extraordinary inspection determined that they were healthy. The fact is that the previous Rulebook allowed for the verification of sick leave, but only after the sick leave ends, when this institute loses its meaning. Now it is possible for employers to request control for ongoing sick leave and to react in a timely manner. This provision is important both for employers and for the budget.
In 2021, an increased number of workers on sick leave was noticed, when according to the data of the Health Insurance Fund of the Republic of Srpska, an average of 20,000 sick leaves were recorded every month. The cost of the Health Insurance Fund on this basis, on an annual level, amounts to about 17 million KM.
On the other hand, the Association of Employers of the Republic of Srpska indicates that – “Sickness is not only a loss in terms of money, there is a bigger problem with workers who replace those who abuse and create a bad climate in the company, wherever you have big abuses of sick leave, you have a bad atmosphere. damage in a segment other than financial”.
Initiative to reduce the number of sick days paid by the employer from 42 to 15 days in the Federation of Bosnia and Herzegovina
The FBiH employers’ association has an additional response to the misuse of sick leave. This Association stands behind the initiative to amend the Law on Health Insurance, in such a way that the number of days of sick leave paid by the employer is reduced from the current 42 to 15. Two thirds of European countries standardize that the number of days of sick leave paid by the employer is zero. Therefore, the first day when the worker goes on sick leave, he is paid by the Health Insurance Fund because he is insured. The Federation of Employers’ Association points out: “There are one or two countries that have three days, for a couple of countries it is seven days, then 15, and two or three countries have 30 days, among which is Serbia, and we have four where it is 42 working days, namely Germany, Austria, Croatia and in FBiH.”
The president of the Federation of Employers’ Association, Mladen Pandurević, told federalna.ba that the Association did research on the use of sick leave in the cantons. The results achieved by the Association are very symptomatic. “The number of sick days of 42 days is seven or eight times higher than the number of sick days over 42 days. It is normal that sick leave up to 42 days is higher than sick leave over 42 days because most diseases do not require long-term treatment. However, this difference is too large and shows that doctors very easily approve sick leave when it is not their burden but the burden of a third party, namely the employers.”
In addition to the above, in the same initiative the employers from the FBiH also demanded the repeal of the provision of the Law which stipulates that in the event of an injury at work (regardless of whether the employer is at fault or not for the injury), the employer pays the entire cost of treatment for that employee, pays sick leave in one hundred percent of the salary, indefinitely, until the worker recovers or until the Commission gives him some degree of disability or returns him to work, regardless of how long it takes.
Brčko District follows the pace of normative changes
And the Association of Employers of the Brčko District recognized its role in the process of supporting employers in case of abuse of sick leave. In the month of August, two initiatives were submitted, which refer to the introduction of extraordinary control of sick leave and the reduction of the number of paid sick days to 15.
Internal acts of the employer as a modality of prevention of sick leave abuse
Relying on good comparative practices, employers increasingly recognize their individual role in the process of sick leave abuse. Since the beginning of the year, the law firm “Ibrahimović & Co” has received several requests from clients with the aim of drafting the Rulebook on how to use sick leave and internal procedures that regulate the monitoring of employee absences, as well as defining the necessary measures with the aim of preventing the abuse of sick leave and faster return to work. The above-mentioned data testify to the increased awareness of the necessity of independent preventive action by employers, which is mutually connected with systemic normative changes in the entities and in Brčko District. Relying on positive changes at both decision-making levels, it seems that the abuse of sick leave in Bosnia and Herzegovina is receiving a serious systemic blow, which in the long term should produce the satisfaction of employers’ interests, greater room for maneuver to increase workers’ wages and reduce the costs of sick leave that fall on the budget .