What is the 120-day rule?

The 120-day rule allows you, as an employer, to terminate an employee with one month's notice if the employee has been ill for a total of 120 days within a 12-month period. The 120-day rule applies regardless of the employee's seniority, but there are conditions that must be met for the rule to be used for terminations. Navigating the rules surrounding dismissals due to high absenteeism can be tricky – especially since illness is generally considered legal absence. The 120-day rule should be used with caution if it is to justify a dismissal during illness. I have therefore compiled information and facts about the 120-day rule to help you, as an employer, better understand your rights and options.

What is the 120-Day Rule?  

The 120-day rule means that as an employer, you can terminate an employee with one month's notice if the employee has been sick for a total of 120 days within 12 months.

Conditions for the 120-Day Rule

The following five conditions must be met to use the 120-day rule: 

1. In Writing: The rule must be clearly outlined in the employment contract. If it is not stated in writing, you can only dismiss the employee with the standard notice period. 
2. Pay During Sickness: The employee must have received pay for all 120 days during the total sickness period. 
3. Sick Days Within 12 Months: The 120 days must fall within a 12-month period, but they do not need to be consecutive. These 12 months do not follow the calendar year. 
4. Timing of Termination: You must terminate the employee immediately after the 120 days have expired. This means you can only terminate the employee on the 121st sick day, but if you wait too long thereafter, you may lose the right to use the rule. 
5. Sick at Time of Termination: The termination must occur while the employee is still on sick leave. If the employee returns to work after 120 sick days, you can only terminate the employee at the next sick leave, but the total number of sick days must still be within the 12-month period.

Even though the 120-day rule must be in writing to be valid, it is not required to appear in an employment contract. The 120-day rule allows an employer to dismiss an employee with a shortened notice period, compared to the standard notice under the Danish Salaried Employees Act. Furthermore, the 120-day rule only applies to employees in the private sector. If you are an employer of a public sector employee, you cannot use this rule.

How to Count to 120 Sick Days

Certain Supreme Court judgments have highlighted how difficult it can be to count to 120 sick days. When calculating the total number of sick days, several factors must be considered: 

• Weekends and Holidays: Weekends and bank holidays are counted if the employee was on sick leave both the day before and the day after. For example, if the employee is sick on a Friday and the following Monday. This only applies if the employee was 100% on sick leave on both days. 
• Partial Sick Leave: Partial sick leave must be calculated in hours and converted into days. A partial sick leave occurs, for instance, when an employee leaves work early due to illness. In the case of part-time sick leave, only the actual absence is counted. For example, if an employee was due to work 7.4 hours and was sick for 4 hours, the absence amounts to 4 hours (4/7.4 = proportion of a day). 
• Work Injuries: Absence due to a work injury can also count under the 120-day rule. 
• Vacation: Sickness during vacation is not immediately included in the counting of sick days unless you as the employer cancel the vacation days during which the employee was sick. 
• Disability: Sick leave related to a disability may be counted if the employer was not aware of the disability at the time of hiring or has fulfilled the obligation to provide reasonable adjustments. This area can be complex and often requires deeper legal insight. You can learn more about how our HR Legal specialists can assist you with such cases.

When Should You Terminate the Employee?

A dismissal must occur while the employee is still on sick leave, but it cannot happen until after the 120 sick days have expired. In some cases, an employee can still be considered sick, even if they have returned to work on a part-time basis. Therefore, the dismissal can take place when the employee is fully or partially on sick leave. Various rulings have established a rule of thumb that the 120-day rule should be applied between 121 – 129.5 sick days. Within this timeframe, a dismissal is usually considered timely, though it always depends on the individual case. So, as an employer, you have a narrow window in which to act. It is also crucial that your calculation is accurate if you decide to dismiss an employee on sick leave, as even small errors can result in the 120-day rule being deemed unjustified.

What If I Can't Use the 120-Day Rule?

If the conditions are not met and you cannot use the 120-day rule, you can still dismiss an employee with high absenteeism. In such cases, the dismissal will be subject to the standard notice period and the general requirements of fairness.

Need Advice? 

If you are unsure how to handle absenteeism and terminations, you can always contact our HR Legal experts. They have extensive experience in handling legal challenges within employment law and personnel law. 

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