What's the threshold for employers suspecting staff are 'pulling a sickie'?
Having employees file for sick leave is a common practice in the workplace, especially since the COVID-19 virus spread worldwide. But what exactly is considered as taking too much sick leave – and can employers do anything about it?
Below we discuss New Zealand’s reasonable sick leave count and what employers can do to minimize the absenteeism.
Since 24 July 2021 under the Holidays (Increasing Sick leave) Amendment Act 2021, NZ employees are allowed sick leave entitlements from five to 10 days per year. Previously, employees were only allowed a minimum of five days’ sick leave per year after their first six months on the job, and then five days per year on each following 12-month anniversary of said date. The Act amended the provisions of the Holidays Act 2003.
With the new Act, employees can still accumulate up to 20 days of unused sick leave for a year, which sees employees carry over up to 10 days of unused leave each year. Employers and employees can also agree to more sick leaves than the legal minimum. Some companies, for example, like to give out unlimited sick leaves or to allow unused leave credits to accrue. In addition, there will be no changes to the amount of sick leave and its related details once the employee has agreed to the conditions.
Read more: Can employees call in sick with a hangover?
There are some employees who take excessive amounts of sick leave past their statutory entitlement. This usually happens in situations where employees are genuinely suffering from severe illness or injury typically beyond their control. Even so, employers may be suspicious over the extended days of sick leave and whether the employee is just pulling in the “sickies”.
When an employee has used up all their sick leave entitlements but is requesting for an extension, it is up to the employer to decide whether to accept the request or not, depending on the circumstance. For example, an employer may allow the employee to advance sick leave, provide unpaid sick leave or decline the request.
An employer is entitled to enquire about employee absences for medical reasons. They may request the employee to provide a medical certificate or undergo a medical assessment – at the expense of the employer if the requested absence is less than three consecutive days – to serve as proof and assurance that the employee is being honest about their condition. It also helps the employer determine whether the employee is fit to fulfil their role’s responsibilities and duties.
If it is proven that the employee is genuinely sick or injured to the point it hinders them from returning to work, then an employer may grant the leave request out of good faith. However, the employer is not obligated to hold the employee’s job open indefinitely. For example, suppose the employee is gone for an inexcusable amount of time and is unable to perform the role’s duties due to the sickness or injury. In that case, the employer can terminate the employment due to medical incapacity. It is crucial for the company to provide a thorough and fair investigation into the employee’s situation to ensure whether they are able to continue work or not, minimizing the risk of any unjust termination. In a case like this, the employment agreement will explain the details on how to go about it.
However, if employees are found to have lied about being ill and took a leave for any other reason, then employers could take disciplinary action. A disciplinary action can vary from issuing a formal warning of misconduct to termination of employment depending on the graveness of the situation.
It is important for companies to know how to handle a situation where an employee requests for a sick leave past their threshold. Below are some helpful ways on how to go about the overuse:
Employers must keep in mind that they cannot determine a reasonable and universal way for employees to heal from sickness or injury. Therefore, it is not the employers’ place to judge the method of healing the employee needs unless the activities are obviously inconsistent and connected with the illness or injury they are facing.
When there is factual reason to doubt the employee’s request for three or more consecutive days, an employer may be able to ask for proof of illness or injury. A medical certificate or a medical examination is typically requested.
Companies should be recording and documenting all absences of the employees no matter if it’s a half day sick leave, numerous sick leaves, or any other leave. In doing so helps serve as proof for any possible legal case involving an employee.
It also aids companies for other processes that would need information included in the records such as performance review and workplace assessments.
Employers should make it a habit to regularly review the company’s policies and procedures regarding sick leave entitlements. The policies should reflect the current requirements of the law as well as the needs of the company and its workforce.
Whether or not changes are made, companies should step up and promote their policies to employees consistently. This can be done through regular email reminders, shout out during town hall, scheduled meetings dedicated to discussing the policy and notes plastered around the office. This way employees are aware of the changes which can lessen any misunderstanding and conflict.
Read more: Kiwis need mental health leave – but how do you get your people to take it?
Companies need to be mindful of the possible legal conflict a termination due to medical reasons can cause. A termination should always be the last resort of employers and should exhaust all possible actions to address any issues. If an employer chooses to terminate an employment without thorough investigation into resolving the issue at hand, it could lead to legal cases against the company that could be based on discrimination or negligence. This could be more costly for the company and can tarnish their employer reputation and brand image.
