What is the 120-day rule? Here's everything you need to know

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What is the 120-day rule? Here's everything you need to know
The 120-day rule applies in cases of prolonged illness among your salaried employees. If an employee has more than 120 sick days within a 12-month period, they can be dismissed with one month's notice.
In this blog post, we will highlight the 120-day rule and explain how and when it can be applied. As an employer, you can incorporate the 120-day rule into your salaried employees' contracts, allowing for a shorter notice period than usual.
What is the 120-day rule?
The 120-day rule allows an employer to terminate a salaried employee with a reduced notice period of one month if the employee has been ill for more than 120 days within a 12-month period. The rule only applies to salaried employees if it is explicitly agreed upon in writing in their contracts.
Your salaried employees are entitled to receive pay during sickness from their first sick day.
When can the 120-day rule be applied?
With a written agreement
The 120-day rule is only valid if it is explicitly agreed upon in writing in the employment contract. Additionally, it can only be used by private employers for salaried employees. The termination must also be issued in writing.
During ongoing illness
The written termination with the shortened one-month notice period must occur while the employee is still on sick leave. If your salaried employee resumes work, the rule can only be enforced during their next period of illness.
Criteria and requirements for the 120-day rule:
- Regardless of the Salaried Employees Act, the 120-day rule must be clearly and explicitly documented in writing in the employment contract to be valid.
- The employee must still be on sick leave when given notice with the one-month period.
- Termination can only be issued after the 120 days have elapsed. It cannot be issued on the 120th sick day but must be done the following day.
How to calculate the 120-day rule
You must ensure proper documentation of sick days and guarantee precise and accurate calculations. It is therefore essential to understand the various types of illness:
Continuous periods of illness
For salaried employees on sick leave, all days are included in the count, including holidays and weekends. This only applies if the employee is on sick leave immediately before the relevant weekend/holiday and the next working day. If the employee is only sick on one of the two days, the weekend will not be included in the count.
Partial sick leave
Partial sick leave is not counted in days but rather in hours, which are then converted into full days. Therefore, only the actual absence can be taken into account when calculating partial sick leave.
Discrimination
The 120-day rule also covers an area known as the "Anti-Discrimination Act." This act ensures that sick leave related to a disability is not included in the calculation.
An exception to this act may apply if the employer was unaware or could not reasonably have been expected to know about the disability. In such cases, there is no obligation for reasonable accommodation.
Work-related injuries
As a general rule, all sick days are included when calculating absence. Employers are entitled to include sick days related to work injuries in the calculation.
Exceptions to the 120-day rule
Certain circumstances prevent the 120-day rule from being applied, even if there are more than 120 sick days:
- Illness related to disability (see discrimination)
- Partial sick leave is only counted in hours, not days
- Pregnancy-related illness is excluded from the count
It is important to emphasise that the rules regarding termination during illness are complex. We always recommend seeking specific legal advice, as this blog post is not a substitute for professional guidance. The purpose of this blog is to prepare you for the discussion, ensuring you have a clear understanding of the 120-day rule.
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