June 2025 – According to the established case law of the Serbian Supreme Court, sick leave abuse occurs when sick leave is used at a time when an employee is not actually ill and is capable of working, as well as when an employee, during the period of incapacity, behaves in a manner contrary to the prescribed treatment or purpose for which sick leave was approved. Therefore, in the court’s view, for an abuse of sick leave to occur, the employee’s conduct depending on the nature of their illness must prevent their recovery or worsen their health condition.
Consequently, in relation to court proceedings and the position taken by the court, the fact that an employee is engaged in other income-generating activities during their sick leave does not automatically constitute an abuse of sick leave. The court will assess each case individually, typically through medical expert analysis, to determine whether the employee’s activities during the sick leave period prevented their recovery or worsened their health.
Below are examples of Serbian case law on this matter:
Given that the plaintiff’s workplace issues caused anxiety with somatisation, significantly impairing his positive attitude toward the workplace and work engagement, leading to concentration problems, decreased productivity, and diminished work quality and considering that it was the work environment and atmosphere, rather than the nature of the duties, that influenced the plaintiff’s ability to work, which is why he was on sick leave and given that the medical records contain no findings indicating further deterioration of the plaintiff’s health or a negative impact from the activities performed during the period of sick leave, the plaintiff did not abuse his right to sick leave by working as a court expert. Such activity did not prevent his recovery or worsen his health.
Supreme Court of Cassation, Decision Rev2 2348/2020 dated 9 February, 2022
The plaintiff used sick leave contrary to the reasons and purposes for which it was established. During January and February 2007, while on sick leave, the plaintiff conducted employee training in another city, as established by witness statements, a report from the defendant’s commission, and written evidence. The plaintiff’s conduct represents a deliberate and conscious abuse of sick leave, using it in a manner contrary to its intended purpose. The fact that the plaintiff had health problems during the disputed period and that the work in Zrenjanin did not endanger his health is irrelevant. The plaintiff was prescribed sick leave for medication and physical therapy and, for an extended period while on leave, performed work identical to that from which they were excused for legitimate health reasons. Therefore, the revision claims alleging incorrect application of substantive law are unfounded.
Supreme Court of Cassation, Decision Rev2 1752/2015 dated 10 November, 2016
On the other hand, Article 84, paragraph 1, item 6) of the Health Insurance Act (Official Gazette of RS, Nos. 25/2019 and 92/2023) stipulates that an insured person who is on sick leave is not entitled to salary compensation regardless of whether it is paid by the employer or the National Health Insurance Fund if they are engaged in economic or other income-generating activities during their sick leave.
The insured person loses entitlement to salary compensation from the date such circumstances are established and for as long as those circumstances or their consequences occur. If these facts are established after the right to salary compensation has been granted or payments have begun, compensation payments will be suspended, and the payer of the compensation is entitled to reimbursement of amounts already paid.
In short, Article 84 of the Health Insurance Act clearly provides that an employee is not entitled to salary compensation if, during sick leave, they perform economic or other income-generating activities for the duration of such circumstances or their consequences.
However, as the Health Insurance Act prescribes an administrative procedure for determining rights under mandatory health insurance, the question arises: when courts assess a potential abuse of sick leave in a particular case, do they not apply the provisions of the Health Insurance Act because it governs only administrative proceedings? Could it be that the courts are unaware of the existence of this provision?
One thing is certain: it is up to employers to bring this legal provision to the court’s attention and, relying on it, to advocate for changes to the case law in such cases.