Executive summary

An employer may issue a Notice to Explain even while an employee is on sick leave, but must still observe substantive and procedural due process. The NTE’s service, deadlines, and hearings must account for the employee’s temporary incapacity and medical restrictions. “Reasonable opportunity to be heard” usually means at least five (5) calendar days from receipt to submit a written explanation, with extensions if the illness or medical advice prevents timely participation. Preventive suspension is rarely appropriate when the employee is already out on sick leave. Mishandling the process—e.g., forcing appearances despite medical orders, denying extensions, or mishandling medical data—can invalidate discipline, trigger money claims, and expose the company to data-privacy and disability-discrimination risks.

I. When and why an NTE is used

An NTE begins the just-cause disciplinary process (e.g., serious misconduct, willful disobedience, fraud, gross neglect). It is not used for authorized causes (redundancy/closure), where a different notice regime applies. The NTE tells the employee (a) what act/omission is alleged, (b) the policies or rules breached, and (c) that discipline up to dismissal is being considered.

Sick leave does not bar issuance. However, the employer must adapt service and timing to ensure a fair chance to respond.

II. Core legal standards that still apply during sick leave

1) Twin-notice rule and hearing

First notice (NTE): detailed facts, specific rule violated, and at least 5 days to respond from receipt (not from issuance).
Opportunity to be heard: written explanation and/or conference/clarificatory hearing; the employee may bring a representative or counsel.
Second notice (decision): states findings, the rule applied, and the penalty (if any).

2) “Reasonable opportunity” during illness

The clock runs only after valid service and actual/constructive receipt.
Grant extensions on a medical showing (e.g., fit-to-work pending, doctor’s advice against work-related activity).
Allow alternative modes: written reply by email, video conference hearing, or post-illness hearing date.

3) Proportionality and good faith

Discipline must be proportionate to proven facts and the employee’s medical context (sedating drugs, hospitalization, mobility limits, etc.). Rushing a hearing despite medical restrictions may be deemed bad faith.

III. Serving the NTE while the employee is on sick leave

Acceptable service methods

Personal service to the employee (or authorized recipient) with acknowledgment.
Courier/registered mail to the last known address (keep waybills/registry receipts).
Official company email or HRIS portal if the company policy designates it as a notice channel and the employee has access.
Messaging platforms may be used only as supplemental, not sole service, unless covered by policy and prior consent.

Practical rules

Record all attempts to serve (dates, times, addresses, screenshots).
Use neutral language in subject lines/messages to protect privacy.
If the employee is hospitalized or incapacitated, serve the NTE but state that deadlines/hearings are suspended/extendable upon proof of medical incapacity.

IV. Deadlines, extensions, and medical proof

Start with ≥ 5 calendar days to answer from receipt.
If the employee submits a medical certificate recommending rest or limiting mental/physical exertion, grant a reasonable extension (e.g., to the fit-to-work date + a buffer, typically 3–5 working days).
For prolonged incapacity, set a status check date and allow submission through a representative or by email.
If the employee ignores the NTE without medical basis after valid service and extensions, the case may proceed ex parte—documenting the efforts is essential.

V. Hearings during or after sick leave

Prefer written explanations while the employee is recuperating; schedule live/virtual hearings only when medically feasible.
If a clarificatory hearing is needed, offer virtual appearance and short sessions, and accommodate breaks.
Where medication affects cognition, defer the hearing until fit-to-work or obtain informed consent to proceed with counsel present.

VI. Preventive suspension and sick leave

Preventive suspension applies only if the employee’s continued presence poses a serious and imminent threat to persons or property or a risk of evidence tampering. If the employee is already on sick leave (i.e., not reporting), preventive suspension is generally unnecessary. If imposed, it must be paid/unpaid per policy and time-bounded (maximum 30 days), with a status notice if extended.

VII. Intersections with attendance, AWOL, and abandonment

Sick leave vs. AWOL: A duly reported and medically supported sick leave is not AWOL. Request reasonable documentation (e.g., medical certificate, hospital SOC).
Abandonment requires intent to sever employment. Ongoing medical communication is inconsistent with abandonment.
Policy misuse: Submitting spurious medical certificates can itself be just cause (fraud/dishonesty)—subject to the same NTE process.

VIII. Pay, benefits, and leave while an NTE is pending

Sick leave credits/SSS sickness benefits continue per law/policy if eligibility is met.
The NTE does not pause statutory benefits or approved sick leave, unless a final decision imposes a penalty that lawfully affects them.
If the employee is fit-to-work before resolution, they may be required to report and participate in the hearing.

IX. Medical privacy and accommodations

Data Privacy: Limit access to medical information to need-to-know HR/Legal staff. Store medical documents separately with access controls.
Sensitive personal information (diagnosis, meds) must not be disclosed in company-wide emails or to supervisors beyond what is necessary to schedule proceedings.
Reasonable accommodation: Adjust timelines, mode, and duration of hearings for disabilities/serious illness; document the interactive process.

X. Documentation: what good files look like

NTE with specific facts, dates, times, named rule/policy provisions, and clear directive to explain.
Proof of service (acknowledgment, registry receipts, email logs).
Employee request for extension with medical proof; employer grant/denial with reasons.
Minutes of hearings (or waiver/non-appearance notes), and copies of all submissions.
Investigation report summarizing evidence, defenses, and findings, signed by the disciplinary panel/HR.
Decision notice detailing the rule, findings, penalty, and effectivity date; proof of service.

XI. Risk hotspots (and how to avoid them)

Issuing the NTE but starting the 5-day clock from issuance, not receipt. → Start from receipt.
Refusing extensions despite medical advice. → Grant reasonable extensions; ask for fit-to-work date.
Forcing a bedridden employee to attend in person. → Offer written/virtual options.
Vague charges (“gross misconduct” without facts). → State who/what/when/where/how and attach documents.
Fishing expeditions. → If facts are unclear, send a clarificatory memo first, then the NTE.
Over-collection of medical data. → Ask only what’s necessary (duration/functional limits), not diagnoses.
Using preventive suspension automatically. → Justify necessity; otherwise avoid.

XII. Templates you can adapt

A. NTE issued during sick leave

Subject: Notice to Explain – [Allegation/Policy] We received reports/evidence that on [date/time] at [place], you [describe act/omission], allegedly violating [policy/Code provision]. You are hereby directed to submit a written explanation within five (5) calendar days from receipt of this Notice, stating why no disciplinary action should be taken. We note that you are currently on sick leave. If your medical condition prevents timely submission or attendance at a clarificatory conference, please inform HR and provide medical advice indicating the expected fit-to-work date so we can adjust timelines accordingly. Failure to respond may result in the case proceeding ex parte based on available records.

B. Extension grant (medical)

We received your request dated [date] attaching medical advice recommending rest until [date]. Your deadline to submit a written explanation is extended to [date + buffer]. We will schedule any conference after your fit-to-work date or via video upon your and your doctor’s concurrence.

C. Hearing notice (post-illness/virtual)

Please attend a clarificatory conference on [date/time] via [platform]/at [venue]. If your condition still limits participation, inform HR by [date] with medical advice so we can reschedule.

D. Decision notice (second notice)

After evaluating your explanation/evidence and the records, we find that [findings], constituting [rule violated]. Considering [mitigating/aggravating] factors, the Company imposes [penalty] effective [date]. You may elevate this per [appeal/grievance] within [x] days.

XIII. Special situations

Probationary employees: Same NTE and due process; be clear whether the issue is just cause or failure to meet standards (standards must be communicated at hiring).
Unionized workplaces: Follow the CBA grievance timeline; unions may attend hearings.
Remote/hybrid workers: Provide digital access to evidence and secure e-sign workflows; confirm receipt via read-acknowledgment.
Multiple respondents: Serve NTEs individually; avoid sharing medical or disciplinary information across cases.

XIV. Quick compliance checklist (HR)

☐ Specific, evidence-based NTE
☐ Valid service and receipt date recorded
☐ ≥ 5 days to answer; extensions documented
☐ Hearing options that fit medical limits
☐ Investigation report with rule citations
☐ Well-reasoned decision notice; proportionate penalty
☐ Separate storage of medical documents; access controls
☐ No retaliation or benefit forfeiture during pending leave (unless justified by final decision)

Key takeaways

You may serve an NTE during sick leave, but procedural safeguards tighten around service, timing, and medical accommodation.
Measure “reasonable opportunity to be heard” from receipt, grant extensions with medical proof, and use virtual/written alternatives.
Preventive suspension is usually unnecessary when the employee is already out sick.
Respect medical privacy and keep the process proportionate; rushing or ignoring medical advice risks illegal dismissal findings.
Solid documentation—from service proofs to investigation reports—wins cases and withstands audit or litigation.