Injury Leave
Related Legislation:
Chapter 452 – Employment and Industrial Relations Act, 2002
Chapter 318 – Social Security Act
Wage Regulation Orders
1. What classifies as an occupational injury?
Article 36 (15) of the Employment and Industrial Relations Act refers to personal injury. Personal injury is defined by the Act as that injury which includes any disease and any impairment of a person’s physical or mental condition. For any claims to classify as injury leave the personal injury must arise out of or in the course of the employee’s employment.
2. Are employees always entitled to injury leave if the incident occurs at the workplace or in the course of the employees’ duties?
Although there is no mention of this in the Employment and Industrial Relations Act, the Wage Regulation Orders clearly mention that employees shall be entitled to injury leave if the employee is injured during the actual discharge of his/her duties and not due to contributory negligence on his/her part or to any contravention of safety rules laid down by the management. There are similar provisions in many collective agreements.
In cases of contributory negligence the absence from the place of work shall be considered as sick leave not injury leave.
3. What if the incident happens when the employee was doing unauthorized work at the work place?
If the employee is injured whilst carrying out duties which do not form part of the regular job description and/or which the employee was not authorized to do, then the incident is not eligible for consideration as injury leave.
4. What procedure has to be followed in the eventuality of an incident at the workplace in which an employee suffers an injury?
First and foremost, priority should be given to any medical assistance that may be required to assist the employee or employees involved. It is important to have contact numbers of: doctors, clinics and/or hospitals at hand.
Secondly the employer should request a written report from the supervisor or other employees present with specific details about the accident including any witnesses that were present.
Thirdly the company should fill in the Injury Form. This form will include the accident report and other relevant details and must first be signed by the treating doctor and then it is signed by the employer. In accordance with Article 97 (2) (a) of the Social Security Act the official form required by law, is to be submitted to the Department for Social Security within 10 days from the date the incident occurred.
Lastly the employer must also ensure that the OHSA accident report is filled and submitted to the OHSA. Although this is only obligatory for incidents where the injury subsists for more than three days, it is still advisable for the employer to notify the OHSA.
5. What are the implications of submitting the NI 13 form?
The Injury form is an obligatory administrative measure with which the employer has to comply. Nevertheless by filling and signing the form the employer is not assuming any kind of responsibility for the injury but is simply stating the facts to the best of his/her knowledge.
It is advisable that if the employer believes that there are reasons why the case should not be treated as injury at work, this should be stated in the Injury Form.
6. Does injury leave cover transport to and from work?
Accidents incurred during transportation to and from work only count as injury leave if the transportation is organized or paid for by the company. In this case the DSS following investigations can issue an injury benefit.
7. What is an industrial disease?
Industrial disease is a term used to describe an ailment or injury resulting from long term exposure to an occupational hazard. For example: long term exposure to asbestos.
The Fourth Schedule of the Social Security Act includes a list of the occupational diseases.
It is to be noted that the Legal Notices pertaining to the OHS Act also include regulations preventing occupational diseases. For example noise levels, use of VDU’s etc.
8. What is the maximum injury leave entitlement?
The maximum injury leave entitlement is of 12 months from date of injury.
During this period employees who pay social security contributions in that employment are entitled to injury benefits. The employer shall pay the full salary/wage for the first three days after injury. Subsequently the employer shall deduct the injury benefit from the basic pay.
The rate of injury benefit is announced annually in the government gazette and/or the update issued by the MEA.
9. What happens when the injury leave entitlement is exhausted?
If following twelve months injury leave the employee is still not fit to resume his/her duties, the employer has the option to terminate employment.
It is advisable that during periods of prolonged injury (or sickness) the employer keeps contact with either the company doctor or a medical specialist to keep abreast of the likelihood of the employee returning to work.
This will enable the employer to plan ahead and avoid making hasty decisions at a critical stage.
10. What happens when the employee is fit to return to work?
Once the employee has been certified fit for work, the employee is obliged to notify his/her employer within seven days of the cessation of the incapacity to work (Art 36 (16) of the Employment and Industrial Relations Act).
In such circumstances the employer is expected to reinstate the employee to his previous work or if this is no longer possible to other suitable work within a period of twenty one days from application.
11. What happens if following the application by the employee to return to work, such employee is not fully fit to resume his/her previous duties and the employer does not have any other alternative posts available?
In this case, if the company has absolutely no alternative work to offer as required by the Employment and Industrial Relations Act, then the employer has no other option than to terminate employment on medical grounds once the one year injury leave elapses.
12. In case of termination of employment what are the employee’s entitlements?
If the employment is going to be terminated, the employee is entitled to statutory bonuses and payment for vacation leave which has accrued up till the last day of employment.
The Malta Employers’ Association is lobbying to remove accrual of leave during periods of absence due to injury, sickness and maternity. In the Schultz-Hoff v Deutsche Rentenversicherung Bund case decided on the 27th January 2009 the ECJ held that employees remain entitled during such periods.
Employees are entitled to any wage scale increments that accrue during the injury period. However employees are not automatically entitled to allowances (for example car petrol allowance) or any bonuses related to individual performance.
13. Can an employee be offered a different job at lower pay upon returning to work if he/she is not fully fit to resume previous duties?
The Employment and Industrial Relations Act (Article 36 (16)) does not specify that any alternative work has to carry the same terms and conditions as the previous post.
14. What happens if the employee who is not fully fit to resume his/her previous duties refuses alternative work which the employer offers?
Since the employer is satisfying the requirement to offer suitable employment, then in such cases the employer may terminate employment.
15. What happens if the symptoms of the accident manifest themselves after the incident? Is it still considered as an injury?
If the employee followed the company’s policy and procedure and it is proven that the symptoms that the employee is suffering are related to the injury, then the employee is eligible for injury leave up to a maximum of one year from the actual date of injury.
Please note that in cases of injury, whenever there is an alleged permanent disability the employee will become eligible for an injury grant from social security department. Moreover the injured person may within two years from date of injury/accident, file a suit for civil damages, irrespective of whether the employee is still employed with the company or not.
16. Can an employer dismiss a person on injury leave during probation?
According to the Employment and Industrial Relations Act the employee injured is entitled to a maximum period of one year injury leave. Thus the employee may not be terminated during the probationary period if the injury subsists for a period longer than that of probation.
However it is to be noted that if there is contributory negligence on the part of the employee then the employee will not technically be on injury leave and the DSS will not issue an injury benefit but the employee will be eligible for sick leave with the employee receiving the sickness benefit from Social Security and therefore can be terminated during probation Department since the law does not impede employers from terminating employment during probation.
17. Employers’ should take note of the following:
All accidents should be documented, including statements from any witnesses if any;
All measures necessary are taken to adhere to occupational health and safety regulations. This includes periodical risk assessments and the appointment of the health and safety representative;
It is advisable for employers to be covered by an employer’s liability insurance.
The above points are important as these will all be taken into account if civil and/or criminal proceedings are instituted.
Civil proceedings are initiated by the complainant or his/her heirs in case. of death. Criminal proceedings can be initiated by the Police in two instances:
- Whenever there is a breach of OHS regulations
- Whenever a serious occupational injury occurs. In such instances a criminal inquiry will be conducted by the Police Department involving the OHSA.
When criminal proceedings are instituted they are instituted against individuals who are company representatives. If found guilty they could be liable to either a fine (multa) or imprisonment or to both.
