As an employer, how many times do you find yourself questioning the genuineness of an employee’s sick leave? Short term and regular taking of sick leave is an area that can cause frustration. As we know, the pressures that can be caused by someone taking ‘suspicious’ sick leave can result in managers losing their patience with an employee, rather than taking assertive and timely steps to understand the circumstances of the leave. It is natural for an employer to question “How can I fairly manage this?” for fear of the dreaded Personal Grievance.

Sick again

Employees are legally entitled to five days paid sick leave after six months of employment, and five days sick leave for every subsequent 12 months of employment. Some larger employers provide more than this as part of their employment agreements and there is nothing more frustrating when a pattern emerges that indicates an employee may be using the entitlement as ‘additional holiday’. So what, if anything, can an employer do to minimise business costs of possible abuse of sick leave entitlement?

  • If you see a pattern of sick leave emerging, consider having a ‘carefrontation’ discussion with your employee. Be careful not to assume abuse, but focus on your concern for health and wellbeing/personal circumstances and agree what actions all parties can take to improve the situation.
  • If after this discussion the situation does not improve and there are no apparent underlying medical circumstances that should warrant the amount of sick leave or the pattern, then have a discussion about the effect that this amount of leave is having on their performance output/achieving business goals/pressures on others.
  • If you have no evidence of abuse, you should tread carefully and make no accusations. Often the observation and the subsequent discussion will be enough for an employee to think twice about non-genuine ‘calling in sick’ if they know you are becoming more aware of a pattern.
  • Don’t be afraid to discuss informally your concerns if you have had information, for example, that they had been out drinking the night before. This is not a formal allegation of dishonesty (because after all a person cannot work if still drunk or severely hungover!) but generally a transparent concern that IF the information were to be correct that you would be disappointed that this situation was allowed to adversely affect attendance.
  • If you have to decline a period of other leave, make it clear that the taking of sick leave on a date that has been previously declined for leave will require the employee to produce evidence of clinical observation on that day (i.e. doctors visit) and a subsequent medical certificate issued on that day.
  • Employers may request proof of sickness, such as a medical certificate, at any time without needing reasonable suspicion that the leave is not genuine. Consider informing your employee in advance that you will be requesting medical certification from now on for any further sick leave absences. If the absence is for a period of less than three consecutive calendar days the employer will be responsible for the reasonable costs of obtaining that proof.
  • An employer should not make an allegation of dishonesty about the genuineness of an employee's sick leave without reliance on a high standard of evidence, commensurate with the seriousness of that allegation.
  • If your Employment Agreement allows, or the employee otherwise agrees, organise for an independent assessment from another medical practitioner and request that the employee attends and provides consent for you to receive information. Any refusal to do so may assist in an employer’s ability to question genuineness further down the line.
  • Medical Certificates issued by doctors are legal documents and an employer is entitled to know the clinical opinion on safe activities/restrictions and timeframes. If a certificate does not provide this (and many don’t) you can contact the issuer to have this clarified. No certificates should be indefinite as clinical observation is necessary to determine a person’s continuing need for time off.
  • Information disclosed on a medical certificate should be based on the doctor’s clinical observation, with patient comment clearly distinguished from clinical observation. If a doctor has not seen the patient when issuing the certificate, you can request that a clinical observation take place.
  • A useful reference around what to expect from medical certification can be found from The Medical Council of NZ: Publications/ Statements/Medical-certification.pdf
  • Unless a public health issue, an employer is not entitled to know private details of an illness unless the employee has provided consent to gain this information, so be careful only to request and provide information that doesn’t compromise privacy.
  • You can request further information about how the doctor was able to provide an opinion of a patient’s incapacity as a result of a retrospective medical certificate.
  • You can make it clear to employees who have no apparent and underlying medical circumstances that retrospective medical certificates will normally not be accepted.
  • If a medical certificate simply ‘signs an employee off work’ and you have other duties, provide the doctor with a list of other duties available and request that he/ she provides a clinical judgement as to the patient’s ability to fulfil any or all of these other duties temporarily.
  • It can sometimes be useful for the doctor to consider any information from an employer about the patient’s work environment, the workplace support available and possible alternate duties. Many times employers are not taking the initiative to contact the doctor with this information.

Employers wanting clarity on what amounts to genuine sick leave can be guided by the court's decision in Taiapa v Te Runanga O Turanganui A Kiwa Trust. Bruce Taiapa worked for a private training institute in Gisborne. He requested leave to attend the New Zealand secondary school’s waka ama championships in Rotorua. His employer declined the request, but offered three days leave as a compromise. Taiapa did not respond to the offer and it was expected that he would be at work the following week.

Taiapa arrived at work on the Monday but left early. He told his manager he was suffering from a long-standing calf injury. A colleague saw him leaving town. When his manager tried to contact him the following morning, Taiapa did not respond. The employer subsequently discovered a Facebook photo of Taiapa at the waka ama championships. Taiapa obtained a medical certificate before returning to work. However, he was dismissed for misleading his employer. Taiapa challenged the dismissal.

The court held that a proper process had been conducted by the employer and that dismissal was justified. Taiapa had misled his employer, which undermined the necessary trust and confidence in the employment relationship. The court's decision also confirmed that it was not the place of employers to determine what was an appropriate way to recuperate from sickness or injury. Activities that assist a sick or
injured employee's recuperation are acceptable.

It will only be where activities are inconsistent with recuperation, that an employer may question whether an employee is genuinely ill. Those activities will obviously differ given the circumstances of an employee's illness or injury.

Employers should keep an open mind about different types of recuperation. Provided activities aid an employee's recovery, they are likely to be deemed acceptable. Medical opinion should be sought where necessary.

No one case will be the same and it is important that employers take all the circumstances into consideration and act fairly before taking any action, Remember, that there will always be many more employees who wouldn’t dream of throwing a sickee versus those that do!

If you would like further advice on managing cases of sick leave fairly, please contact The Chamber.

Melicia Clough
Employment Relations & HR Adviser

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