Illness is generally considered a legal absence and therefore gives employees the right to be absent from the workplace. Salaried employees are entitled to full pay during illness and the same applies to many employees covered by a collective agreement. However, this rule is not without exceptions, because if the illness is self-inflicted – caused by intent or gross negligence – the illness is not considered a legal disability. A new decision from the Labour Court on sick leave due to cosmetic surgery shows that absence in connection with a cosmetic procedure can in certain cases be recognised as illness if the operation is medically justified and of a reconstructive nature.
An employee who is unable to work due to illness is generally legally absent and thus entitled to absence from work, without the absence constituting a breach of the employment relationship. The term “illness” is interpreted broadly and covers any physical or mental health condition that prevents the employee from performing his or her work in their usual manner. The concept of “incapable of work” is also a relatively broad concept within the meaning of the Sickness Benefits Act, and when assessing a person’s incapacity for work, a comprehensive assessment must be made that includes both the illness itself and its impact on the employee’s ability to work.
In cases where an employee is absent following a cosmetic procedure, questions may arise as to whether the employee’s absence should be described as sick leave or whether the absence is self-inflicted. In the latter instance, the employee must take holiday or ask for self-paid leave in connection with the procedure.
The consensus is that planned cosmetic procedures do not constitute illness. This is because the procedures are typically voluntary and not medically necessary, and the absence is therefore considered self-inflicted. Thus, the absence in these cases is not considered legal absence, and the employee is generally not entitled to pay or protection against absence response from the employer.
Cases of doubt arise in particular when the cosmetic procedure is recommended on the basis of a medical assessment or because the employee in question experiences physical or mental issues that can be remedied by means of a cosmetic procedure. It is always dependent on a specific assessment, which must take into account the nature of the procedure provided by documentation and the reason for the absence.
The perspective has long been that it is not sufficient for an employee themself to want a cosmetic procedure or absence thereof. Thus, there must be a health-related reason that has been medically assessed and documented before the absence can be recognised as a legal absence.
The case concerned a female chauffeur who underwent a so-called fleur de lis operation at a private hospital, where excess belly skin was removed. The procedure was paid for by the employee herself, and her employer considered it a cosmetic operation. The chauffeur was unable to work for 3 1/2 months, during which period the employer did not pay wages, citing the lack of documentation that there was a medical justification for the procedure.
During the professional proceedings, a statement from the operating surgeon was presented, in which it was stated that, in the doctor’s medical opinion, the operation was in fact in the nature of a reconstructive treatment. The employee also explained that she had significant physical and mental discomfort as a result of the excess stomach skin, including limitations in connection with the performance of her work as a driver.
On this basis, the Labour Court found that the female chauffeur’s operation was not exclusively for cosmetic purposes but had in fact been carried out for health reasons. As a result, the absence was considered illness within the meaning of the collective agreement, and the employee was thus entitled to sick pay during the period.
The decision does not change the basic premise but confirms that cases of illness – even if it has a cosmetic character – are medically justified and of a reconstructive nature. Thus, the decisive factor is not only who paid for the operation or whether it was performed privately, but whether there is a medical assessment documenting that the procedure was necessary for health reasons.
Mette Klingsten Law Firm assists with advice on all aspects of employment law. For more information, please contact Mette Klingsten at mk@mklaw.dk or Mads Bernstorn at mb@mklaw.dk.
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