The team from Employers Assistance provide legal insight into how HR can handle prolonged sick leave and requests for further information.
After the expiry of sick leave entitlement and consultation with the employee on the use of annual leave, a useful starting point is to identify what medical information is sought. For instance, a medical certificate should detail a clinical opinion on safe activities / restrictions and timeframes for returning to work. This should detail fitness for work outlining those activities that are safe for the patient to undertake and appropriate restrictions, or unsafe activities that the patient should not undertake.
Where workplace injury or illness is involved or where the illness or injury may have an impact on co-workers and the public, the medical certificate should contain both a diagnosis and the workplace factors which may have contributed. A certificate should clearly identify the examination date and the time period of treatment (if any). Retrospective certificates should be clearly identified.
It is then useful to determine what information the employment agreement enables the employer to obtain. If the employee has an existing medical condition that he or she failed to disclose on employment, there may be grounds for ending the employment relationship due to misrepresentation. Some employment agreements include a provision for an employee to cease work and undergo medical examination.
The first substantive step in obtaining information is to call a formal meeting with the employee with a support person to ask various questions about his or her illness. The employer should tell the employee of the effect that the employee's absence is having on the business. This should also outline what further information is required and what is expected in the employment agreement. The employer is best advised to explain to the employee that their job cannot be held open indefinitely and on that basis may require termination. Depending on the circumstances, any period of more than one month should be considered to be grounds for ending the employment relationship. The employee should be given a proper opportunity to comment.
Depending on the clauses in your employment agreement, the employer should have the employee sign off on a "consent to release information form" and provide them with relevant information regarding their rights under privacy legislation. This will allow the employer to contact the medical professionals directly. Once signed, the consent forms should be supplied to the relevant health professionals. Where consent is not forthcoming, without the relevant information in front of the employer it is nigh impossible to constructively participate in or manage the process.
As part of this process, the employer may consider it appropriate for the employee to attend another health professional of the employer’s choice, at the employer’s cost, regardless of whether the employer has access to existing medical reports. This again requires the employee’s consent which may have been obtained in the employment agreement and this information will again need to be disclosed to the employer. In any event, it should be recalled that an employee is to act in good faith by being responsive and communicative both under the Employment Relations Act 2000 and the Health and Safety in Employment Act 1992. Under the Holidays Act 2003, an employee is required to establish that he or she is fit to return to work.
If the employer is still considering the possibility of ending the employment relationship, the employer is required to consider alternatives to dismissal including a graduated return to work and work on lighter duties. An employee must be given a reasonable time to recover and the employer must consider any realistic prospects of returning to work within a reasonable time frame. There needs to be open and honest communication between both parties of their positions and intentions.
Where the employer is unable to access relevant information and where there is no reasonable prospect of a return to work due to a prolonged illness/injury, the employer should, after following a fair and reasonable process including discussing the matter with the employee before making any decision, end the employment relationship.
Employers Assistance provides comprehensive employment Law advice and online cloud-based resources to New Zealand businesses. To learn more visit their website www.employers.co.nz
