Executive snapshot

Yes, an employer may issue an NTE while the employee is on sick leave. But the employer must still observe statutory due process (the “twin-notice” rule) and give the employee a reasonable opportunity to be heard.
“Reasonable opportunity” generally means at least five (5) calendar days from receipt of the NTE, with accommodation for the employee’s medical condition (extensions, written submissions, remote conference).
Service and proof of service are critical: document when and how the NTE was received; if undelivered, show diligent efforts (registered mail/courier to last known address, official email, messaging acknowledged by the employee).
No retaliation for taking sick leave. Using the sick leave itself as a ground for discipline—when properly filed and supported—is unlawful. Proceed only on the alleged infraction, not the leave.
If the illness makes participation temporarily impossible, hold or extend the admin timelines. If the employee evades service or refuses to participate despite genuine notice and time, the employer may proceed ex parte and issue the second notice (decision) based on evidence.

Legal framework (plain-English)

Labor Code due process for just-cause dismissal (misconduct, fraud, etc.) requires:
- First notice (NTE/charge memorandum) stating the specific acts, policy violated, and evidence;
- A chance to explain and be heard (written explanation, conference/hearing if demanded or necessary); and
- Second notice (decision) stating findings, grounds, and penalty. These safeguards apply even if the employee is on leave.
Authorized causes (e.g., redundancy, closure, disease) follow a different notice regime (prior written notice to DOLE and to the employee). The present topic focuses on administrative discipline during sick leave, i.e., just-cause processes.
Service Incentive Leave (SIL) and company sick leave: The law grants at least 5 days SIL (convertible to sick or vacation if no superior benefit). Many employers grant contractual sick leave on top. Exercising a lawful leave is not a valid ground for discipline.
Data privacy & medical confidentiality: HR should collect only necessary medical info (e.g., fit-to-work date, period of incapacity), share it on a need-to-know basis, and avoid public disclosure.

Issuing an NTE during sick leave: what’s allowed vs what’s risky

Allowed

Sending the NTE to the employee’s last known address (registered mail/courier), company email, and messaging channel previously used for official communications.
Counting the response period from actual receipt, not the date of mailing.
Offering accommodations: written explanation instead of in-person hearing, virtual clarificatory conference, or reset aligned with medical advice.
Preventive suspension (limited to 30 calendar days) only if the charged offense and the employee’s presence pose a serious and imminent threat to property or co-workers or may prejudice the investigation. (It is not a penalty and should be used sparingly; if extended, pay wages beyond 30 days.)

Risky/Unlawful

Forcing attendance at the workplace or hearing while the employee is medically unfit;
Denying any extension despite proof of confinement/incapacity;
Using the sick leave itself (properly filed) as “absenteeism” or “insubordination”;
Ambiguous NTEs that don’t specify the acts, dates, and policies violated;
Unreasonably short deadlines (e.g., 24–48 hours) without medical accommodation.

“Reasonable opportunity” while on sick leave

Minimum benchmark: Five (5) calendar days from receipt of the NTE to submit a written explanation and supporting evidence.
Medical accommodation: If the employee submits a medical certificate indicating incapacity to respond (e.g., sedation, surgery, strict bed rest), grant a reasonable extension (commonly 5–10 more days), or wait until the fit-to-work date for any in-person appearance.
Remote process: Allow email submissions, e-signatures, or videoconference hearings if the employee is able to participate remotely.
Ex parte: If the employee received the NTE and unreasonably refuses to answer or attend despite extensions, the employer may document the refusal and resolve on the record.

Service and documentation best practices

Multiple channels: Send via registered mail/courier to the last known residential address and company email; optionally, via acknowledged messaging.
Proof of service: Keep courier waybills, registry receipts, email delivery/read logs, screenshots of acknowledgment.
Receipt date controls the countdown. If returned unserved, re-send and record attempts; if the employee is hospitalized, coordinate with counsel about holding in abeyance pending discharge, unless urgent risks exist.
Neutral language: Avoid conclusory terms (“You are guilty”). Use “allegedly” and invite a full explanation.

Interaction with sick leave and pay

Sick leave pay/benefit: Continue per company policy/CBA; an administrative case does not suspend sick leave credits already approved.
SSS sickness benefit: If applicable, the company processes the claim independently of the admin case.
No offsetting: Do not unilaterally charge penalties against sick leave pay or SSS reimbursements.
If separation occurs after due process, pay all accrued benefits (including unused convertible leave as per policy) and final pay within statutory timelines.

Handling extreme scenarios

Long-term incapacity (e.g., months): Keep the admin case alive but paused, conduct periodic reviews, and communicate status. If the charge is grave and evidence is documentary (e.g., fraud captured in systems), you may invite a written explanation through counsel and proceed once reasonable opportunity has been afforded.
Hospital confinement & counsel representation: Accept filings signed by counsel with the employee’s sworn statement attached when the employee cannot personally appear.
Alleged offense = falsified sick leave: Distinguish between legitimate illness (respect leave) and fraudulent claims (NTE may precisely address falsification; request original medical records through proper channels).

HR compliance checklist (when issuing NTE during sick leave)

Identify the specific acts, dates, policies allegedly violated.
Draft a clear NTE (facts, rule breached, evidence list, demanded explanation).
Serve via registered mail/courier and official email; log proof of service.
Give at least 5 calendar days from receipt; build extension logic for medical incapacity.
Offer remote participation options; document accommodations.
Evaluate the written answer and schedule a clarificatory conference if needed.
Issue second notice (decision) with findings and penalty, or dismiss the charge if unproven.
If imposing penalty, check proportionality, past record, and consistency across cases.
Keep a complete case file (NTE, proof of service, reply, minutes, decision).

Employee playbook (if you receive an NTE while ill)

Acknowledge receipt (brief email/text) and state medical status and expected recovery date; request extension if needed, attaching your medical certificate.
Submit a written explanation within the deadline granted; attach supporting documents (emails, logs, witnesses, medical records if relevant).
If a live hearing is set while you’re unfit, request a reset or remote appearance with your doctor’s advice attached.
Avoid silence; if you truly cannot respond, have counsel or a union representative file a manifestation preserving your rights and asking for time.

Templates

A) Notice to Explain (while employee is on sick leave)

Subject: Notice to Explain – Alleged Violation of Company Policy Date: [____] To: [Employee Name], [Position]

This pertains to the following alleged acts: On [date/time], at [place/system], you allegedly [describe specific conduct], which, if true, violates [Policy/Handbook provision]. Attached are copies of [CCTV logs/emails/reports] (Annexes “A–C”).

You are hereby required to submit a written explanation within five (5) calendar days from receipt of this notice why no disciplinary action should be taken.

We note you are currently on sick leave. If you need additional time due to medical incapacity, please submit a medical note indicating the period of incapacity so we can consider a reasonable extension. You may send your explanation by email or request a virtual clarificatory conference.

Please be reminded this is not a finding of guilt. Failure to submit an explanation despite receipt of this notice may result in a decision based on available records.

[HR/Disciplinary Officer] [Title & Contact]

B) Employee request for extension (medical)

Subject: Request for Extension – NTE dated [____] I acknowledge receipt of the NTE on [date]. I am under medical care for [diagnosis (optional)] and currently unfit to prepare submissions until [date] (see attached medical certificate). I respectfully request a [5/10]-day extension and will submit my written explanation by [new date]. Thank you.

C) Second Notice (Decision) – due process language

After evaluating your explanation dated [____] and the evidence on record (Annexes “A–D”), the Company finds that [findings of fact] constitute a violation of [policy]. Considering [length of service, prior record, gravity], the Company imposes [penalty] effective [date].

You may file an appeal/grievance under [policy/CBA] within [x days].

Frequently asked questions

Q: Can HR send the NTE to my personal email or home address while I’m confined? A: Yes, for service purposes. The response period should run from your receipt, and you may request more time if medically necessary.

Q: I’m on approved sick leave. Can they discipline me for not attending a face-to-face hearing? A: They should offer reasonable alternatives (extension, written submission, virtual hearing). Penalizing you solely for non-appearance while medically unfit risks due-process violations.

Q: What if I don’t respond at all? A: If there is proof of receipt and reasonable time was given, the employer may decide ex parte. Always acknowledge and request time if needed.

Q: Does preventive suspension apply while I’m already absent due to illness? A: It may be moot while you’re out sick. If invoked, it must meet the strict test (serious and imminent threat) and the 30-day limit.

Key takeaways

An NTE may be issued during sick leave, but the employer must ensure real, not illusory, chances to be heard: proof of service, adequate time, and medical accommodations.
Five days from receipt is the minimum; extend when incapacity is proven.
Keep the process neutral, documented, and humane—or risk illegal dismissal findings (backwages, reinstatement/ separation pay, damages).
Employees should acknowledge, request extensions with proof, and submit clear written defenses; silence is risky.

This article provides general guidance on Philippine practice. For complex situations (e.g., executives, unionized workplaces, or parallel criminal/civil proceedings), consult Philippine labor counsel.