Annex A. Employment protection legislation for employees experiencing sickness or disability
Table A A.1. Criteria for determining fairness of dismissal due to sickness and disability in employment protection legislation across OECD countries
Situation as of 2019
Source of fair dismissal
Source of unfair dismissal
Reference text
Australia
O
O
Inability to perform the inherent requirements of the position (including for medical reasons) may be a valid reason for the termination of an employee.
Chile
O
Dismissal for personal reasons (i.e. insufficient performance, unsuitability for medical reasons) is not allowed under Chilean labour legislation.
Czech Republic
O
The employer may give notice of termination to an employee, if according to a medical certificate issued by the occupational medical services provider the employee has lost, long-term, his capability to perform his current work.
Denmark
O
Fair: Lack of competence, including unsuitability for medical reasons, unsuitability for insufficient qualification and insufficient performance.
Finland
O
Unfair: Dismissals for an employee’s illness.
France
O
O
The employer must justify grounds that are valid and related to the individual to proceed with dismissal. These may include incompetence. An employee who is declared unfit by the physician must be reclassified by the employer, taking into account his or her capacities.
Germany
O
O
Dismissals where the employee can be retained in another capacity within the same establishment or enterprise are unfair. Rehabilitation must already have been attempted before dismissal, or the dismissal is considered unfair.
Hungary
O
In the case of unsuitability for medical reasons, the employment relationship can be terminated lawfully when the employer is unable to employ him or her despite adjustments in the working conditions.
Korea
O
For physical disability: if caused by work, dismissal during sick leave prohibited; if non-work-related, dismissal possible based on comprehensive considerations on the possibility of transfer to another job (given worker’s adaptation to new tasks).
Lithuania
O
The employer has the right to terminate an employment contract when an employee is no longer able to hold the position or perform the work.
Mexico
O
Fair: Dismissal for physical or mental disability or manifest unfitness of the worker that makes employment continuation impossible.
Netherlands
O
Unfair: Dismissal during the first two years of illness or disability of an employee.
Norway
O
If an employee suffers reduced capacity for work as result of an accident, sickness, fatigue, etc. the employer shall, as far as possible, implement necessary measures to enable the employee to retain or be given suitable work.
Sweden
O
In the case of lesser capability because of (e.g.) age, disease, etc., the employer must try to adjust the workplace, rehabilitate the employee or transfer the employee to other suitable work.
United States
O
O
Workers in firms with 50+ employees working within 75 miles and worked at least 1 250 hours for their employer for at least 12 months are entitled to 12 weeks of unpaid job-protected leave because of non-work-related illness or injury per year.
Note: Excerpted from ‘5. Definition of unfair dismissal’ out of 24 EPL-related questions by country. OECD countries where relevant regulations are not specified or ambiguous in DDEPL are excluded.