Sick leave period: what to do if an employee exceeds it (HR LINK, 21 March 2025 – Vittorio De Luca)

Exceeding the sick leave period represents a delicate balance between employee rights and business needs. Over the years, case law has provided important guidance on the matter. What checks must the employer carry out, and what are the employee’s responsibilities?

The issue of exceeding the sick leave period is a key aspect of human resource management. On the one hand, employees suffering from serious or prolonged illnesses need sufficient time off to recover without losing their job. On the other hand, businesses must ensure operational continuity and may struggle to manage prolonged absences.

Managing the exceeding of the sick leave period requires a balanced and careful approach. Employers must verify compliance with contractual regulations and act in good faith, avoiding hasty or discriminatory measures.

Employees, in turn, have a duty to properly communicate their condition and comply with the rules set by their contract and the law. Over time, case law has provided essential guidance to balance these interests. However, only a case-by-case assessment can ensure the right equilibrium between employee protection and business needs.

What the law says about exceeding the comportion period

The accrual period is mainly regulated by Article 2110 of the Civil Code, which states that in the event of illness, the employee has the right to keep his job for a period determined by collective agreements. Once this limit has been exceeded, the employer may terminate the relationship, subject to the right to compensation for notice.

Moreover, Law 300/1970 (Workers’ Statute) in Article 18 goes into the merits of the termination of employment: the rule protects the worker from dismissals announced in violation of Article 2110, second paragraph, of the Civil Code, providing the right to reinstatement in the workplace.

Landmark Rulings

Over the years, several Supreme Court rulings have made headlines regarding the exceeding of the sick leave period and have clarified that the employer must consider the specific situation of the employee and evaluate possible alternatives before proceeding with dismissal.

In addition to the case that gained media attention of an employee dismissed when only a few days remained before the end of the sick leave period (Supreme Court Ruling No. 24766/2017), here are some rulings that have made history:

• Supreme Court Ruling No. 11815/2016: The Court reaffirmed that dismissal for exceeding the sick leave period is legitimate only if the employer demonstrates that the days of absence were correctly calculated and that any suspension periods (e.g., vacation or work-related injuries) were considered.
• Supreme Court Ruling No. 6464/2020: It was highlighted that the dismissal of an employee for exceeding the sick leave period is unlawful if the employer has not evaluated the possibility of assigning them to tasks compatible with their residual health condition.
• Supreme Court Ruling No. 26675/2018: The Court confirmed that the employer must consider the possibility of alternative solutions, such as relocating the worker to a less demanding position, before proceeding with dismissal.

Employer’s Checks

To avoid legal disputes, the employer must carry out careful checks before taking disciplinary measures. In particular, they must:

• Accurately calculate the sick leave period: The total number of sick leave absences within the reference period must be precisely verified, distinguishing between continuous leave (uninterrupted absence) and intermittent leave (repeated absences).
• Analyze the collective labor agreement (CCNL): Some CCNLs establish different terms or exceptions for specific categories of workers.
• Evaluate any extension requests: If the employee is entitled to an extension due to serious health conditions, the employer must take this into account.
• Act in good faith: Case law requires the employer to act fairly, assessing each case individually and considering possible alternatives before dismissal.

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