Absences Due to Serious Illness: How to Respond to NTEs and Avoid Dismissal Under Philippine Labor Law

Introduction

In the Philippine employment landscape, absences from work due to serious illness present a complex interplay between employee rights and employer prerogatives. The Labor Code of the Philippines (Presidential Decree No. 442, as amended) and related jurisprudence provide safeguards for workers facing health challenges, while also outlining procedures for employers to address prolonged absences. This article explores the legal framework governing such absences, the role of Notices to Explain (NTEs) in disciplinary proceedings, strategies for employees to respond effectively, and measures to prevent unjust dismissal. Understanding these elements is crucial for both employees and employers to ensure compliance with due process and substantive labor standards.

Legal Basis for Absences Due to Illness

Philippine labor law recognizes that illness can legitimately excuse absences, but it distinguishes between temporary sickness and chronic or serious conditions that may impact employability. Key provisions include:

Article 284 of the Labor Code (Disease as Ground for Termination)

Under Article 284, an employer may terminate an employee suffering from a disease if:

The continued employment is prohibited by law, or
It is prejudicial to the employee's health or that of co-employees.

However, termination is not automatic. The employer must secure a certification from a competent public health authority confirming the disease's nature and risks. Additionally, the employee is entitled to separation pay equivalent to at least one month’s salary or one-half month’s salary for every year of service, whichever is greater, with fractions of six months counted as one year.

This provision applies to serious illnesses like tuberculosis, hepatitis, or other contagious diseases. For non-contagious serious illnesses (e.g., cancer, heart disease), absences may be treated as authorized if supported by medical evidence, rather than as grounds for dismissal.

Authorized Absences and Sick Leave

Absences due to illness are generally considered authorized if they fall within the employee's entitled sick leave. The Labor Code does not mandate a minimum number of sick leave days for private sector employees, but many collective bargaining agreements (CBAs) or company policies provide for 15-30 days of paid sick leave annually. Unused sick leave may be convertible to cash or carried over, depending on company rules.

For illnesses extending beyond available leave, employees may avail of:

SSS Sickness Benefits: Under Republic Act No. 11199 (Social Security Act of 2018), members of the Social Security System (SSS) can claim benefits for sickness lasting at least four days, up to 120 days per year. This requires a medical certificate and notification to the employer.
Extended Leave Without Pay: If medically justified, employees may request unpaid leave, which employers should grant reasonably to avoid constructive dismissal claims.

Jurisprudence, such as in De Guzman v. NLRC (G.R. No. 143790, 2002), emphasizes that absences due to bona fide illness, when properly documented, do not constitute gross and habitual neglect of duties under Article 282 (now Article 297) of the Labor Code, which is a just cause for dismissal.

The Role of Notices to Explain (NTEs)

When an employee's absences raise concerns, employers often initiate disciplinary action by issuing a Notice to Explain (NTE). This is a cornerstone of procedural due process as mandated by Article 277(b) of the Labor Code and Department Order No. 147-15 (Rules on Employee Termination).

What is an NTE?

An NTE is a written notice requiring the employee to submit a written explanation for alleged misconduct or poor performance, such as excessive absences. It must:

Clearly state the facts and circumstances of the alleged violation.
Reference the specific company policy or labor law breached (e.g., rules on absenteeism).
Provide a reasonable period (at least five days) for the employee to respond.
Inform the employee of the potential consequences, including dismissal.

Failure to issue a proper NTE renders any subsequent dismissal illegal, as held in King of Kings Transport, Inc. v. Mamac (G.R. No. 166208, 2007).

When Are NTEs Issued for Illness-Related Absences?

NTEs are typically sent when absences:

Exceed authorized leave without prior approval.
Appear habitual or without valid justification.
Impact business operations significantly.

For serious illnesses, an NTE might question the legitimacy of the absence or seek clarification on the employee's fitness to return to work.

Responding to NTEs: Strategies for Employees

A timely and substantive response to an NTE is critical to defending against dismissal. Employees should approach this as an opportunity to present evidence and assert rights.

Key Steps in Responding

Acknowledge Receipt: Sign the NTE upon receipt, noting the date and time, to avoid claims of non-receipt.
Gather Evidence:
- Medical Certificates: Obtain detailed certifications from licensed physicians, including diagnosis, treatment plan, and expected recovery period. For SSS benefits, include the SSS medical certificate.
- Hospital Records: Bills, discharge summaries, or prescriptions to corroborate the illness.
- Communication Logs: Proof of notifying the employer (e.g., emails, texts, or verbal reports to supervisors).
- Witness Statements: Affidavits from family or colleagues attesting to the illness.
Draft the Response:
- Address each allegation point-by-point.
- Explain the serious nature of the illness and how it necessitated absences.
- Reference legal protections, such as Article 284, and argue that the absences are not willful neglect.
- Request accommodations if needed, like modified duties or extended leave under Republic Act No. 11210 (105-Day Expanded Maternity Leave Law) if applicable, or under general principles of reasonable accommodation for disabilities.
- If the illness is work-related, invoke Employees' Compensation benefits under Presidential Decree No. 626.
Submit Within Deadline: Deliver the response in writing, keeping copies. If unable to meet the deadline due to ongoing illness, request an extension with medical proof.
Seek Assistance:
- Consult a labor lawyer or the Department of Labor and Employment (DOLE) for free advice.
- If unionized, involve the union representative.

In Agabon v. NLRC (G.R. No. 158693, 2004), the Supreme Court stressed that employees must be given ample opportunity to be heard, and a well-documented response can shift the burden back to the employer.

Common Pitfalls to Avoid

Ignoring the NTE: This can be construed as admission of guilt.
Providing Vague Explanations: Be specific about the illness without disclosing unnecessary personal details to protect privacy under Republic Act No. 10173 (Data Privacy Act).
Emotional Responses: Stick to facts and legal arguments.

Avoiding Dismissal: Preventive Measures and Remedies

Preventive Strategies

Prompt Notification: Inform the employer immediately upon illness onset, preferably in writing.
Utilize Leave Benefits: Exhaust paid sick leave before unpaid absences.
Medical Fitness Certification: Upon recovery, secure a return-to-work clearance from a doctor.
Request Reasonable Accommodations: For chronic illnesses, discuss adjustments like telework or lighter duties, drawing from DOLE advisories on disability-inclusive workplaces.
Document Everything: Maintain records of all communications and medical documents.

If Dismissal Occurs

If terminated despite a proper response, employees can challenge it as illegal dismissal under Article 279 of the Labor Code, entitling them to reinstatement, backwages, and damages.

File a Complaint: Lodge a case with the National Labor Relations Commission (NLRC) within the prescriptive period (generally four years for money claims).
Burden of Proof: The employer must prove just cause and due process; illness-related absences shift focus to whether the disease meets Article 284 criteria.
Jurisprudential Precedents: Cases like Triple Eight Integrated Services, Inc. v. NLRC (G.R. No. 129584, 1998) affirm that dismissals for illness without medical certification are invalid.

For work-related illnesses, claims can be filed with the Employees' Compensation Commission (ECC), providing disability benefits, medical reimbursement, and potential employer liability.

Employer Obligations and Best Practices

While this article focuses on employee perspectives, employers must:

Comply with due process: Twin notices (NTE and Notice of Termination).
Avoid discrimination: Under Republic Act No. 7277 (Magna Carta for Disabled Persons), as amended, serious illnesses qualifying as disabilities protect against unjust termination.
Provide Support: Offer health programs or referrals to SSS/ECC.

Non-compliance can lead to liability for illegal dismissal, with penalties including reinstatement and full backwages.

Conclusion

Absences due to serious illness under Philippine labor law are protected when justified, emphasizing humane treatment of workers. By responding effectively to NTEs with robust evidence and legal arguments, employees can safeguard their jobs. Employers, in turn, must balance operational needs with legal obligations. Ultimately, adherence to these principles fosters fair labor relations, reducing disputes and promoting workplace well-being. For specific cases, consulting legal experts or DOLE is advisable to navigate nuances.