View of what being sick means is changing
As we leave the winter weather behind us and have recently observed Mental Health Awareness Week in September, now is as good a time as any to consider the sick leave landscape. This article provides a refresher on the ins and outs of sick leave entitlements, as well as considering how the boundaries of sickness and health are expanding.
Since May 2021, the Holidays Act 2003 (Act) entitles employees to 10 days of paid sick leave per year from the six-month anniversary of an employee starting work. Under the Act, this 10-day entitlement can be carried over to another year and an employee may have up to 20 days of sick leave available in any year.
These entitlements can, of course, be enhanced by an employer. For example, a higher annual sick leave entitlement could be agreed, an employee could become entitled to take sick leave at an earlier stage, or an employer could allow an employee to “bank” more than 20 days of sick leave total.
An employee may take sick leave where they themselves are sick or injured, if their partner is sick or injured, or if a dependent is sick or injured.
An employer can request proof when sick leave is taken. If someone has been ill for three or more days in a row (regardless of whether these would be working days), there is no legal obligation for the employer to meet this cost. However, if an employer requires this proof sooner, then it must:
It can also be agreed that the employee will produce proof of sickness or injury where an employer provides sick leave beyond the Act’s entitlements.
Generally, a medical certificate is an acceptable form of proof, from an employee’s practitioner of choice. In COVID-19 cases, texts from the Ministry of Health confirming a positive test are also acceptable.
In some circumstances, an employer may also request proof that there are no health or safety reasons, or hygiene reasons that would prevent someone from working.
The traditional school of thought with sick leave was once that it is primarily for circumstances where someone is physically “sick or injured” - essentially, when someone is physically incapable of working. Now, sick leave’s application to mental health concerns, such as stress or burnout. This intuitively makes sense - mental wellbeing is as important as physical and also affects productivity and ability to work.
More recently, it has been suggested that an even broader approach, one that regards te whare tapa whā may be accepted in particular circumstances.
As a high-level overview, te whare tapa whā conceptualises health and wellbeing as a four-walled wharenui. These walls encompass the types traditionally captured by sick leave, taha tinana (physical wellbeing) and taha hinengaro (mental and emotional wellbeing), as well as taha whānau (family and social wellbeing) and taha wairua (spiritual wellbeing). The foundation of the wharenui is our connection to the land. From this perspective, each aspect, when in balance with each other, support overall health and wellbeing. When an aspect is out of balance, wellbeing overall is impacted.
The 2013 case, Taiapa v. Te Runanga o Turanganui a Kiwi [2013] NZEmpC 38; ARC 54/12, is an example of greater recognition of Te Ao Māori and sick leave. Here, an employee of a Māori organisation “founded on and governed by tikanga” attended a waka ama tournament as part of recuperating his spiritual wellbeing and was dismissed for misusing sick leave. In this instance, though the dismissal was upheld where it was rooted in a loss of trust and confidence and lack of communication in the circumstances, the Chief Judge commented that it was not unreasonable for the employer to have approached the sick leave in accordance with tikanga.
Taiapa’s reflection of the Employment Court’s willingness to recognise and give effect to tikanga where this has been invoked by an employer can also be seen in the 2023 case GF v. Comptroler of the New Zealand Customs Services.
Even without tikanga being invoked, arguably as people become more aware of broader understandings of wellbeing, the boundaries of sick leave are being expanded as cultural views change.
For example, the recently observed Mental Health Awareness Week included highlighting the following actions:
This would indicate taha wairua or taha whānau may not be as far of a step outside of the currently accepted sick leave as thought. It also suggests that the approach to recuperating may go beyond the traditional perspective on sick leave recovery.
Considering the above, arguably the tide is turning towards taking a more holistic view of health and wellbeing. How this fits within the statutory framework no doubt raises questions moving forward. Where an employer may request proof of sickness or injury, there is also a question of what this proof could look like in future.
Maria Green is a Special Counsel specialising in employment law at Lane Neave in Christchurch. Helena Scholes is a member of the Employment Law Team at Lane Neave in Wellington.
