When requesting medical notes, HR departments need to tread very carefully
When an employee has been away from work for a few days, it becomes a worry for HR on multiple levels.
Firstly, there is the obvious concern around the health and wellbeing of the employee. Secondly, there is the unenviable task of finding a replacement to complete the sick or injured person’s work.
And if the employee has been off for a long time, the inevitable and often unanswerable question arises: how long till they return?
In that circumstance, employers will often say ‘since you have been away for a long time, please explain the full extent of the situation’, according to Hamish Kynaston, partner at Buddle Findlay.
“Employers need to measure the impact of the employee’s particular condition on their ability to work,” said Kynaston.
“The next step for HR departments is asking two more questions: ‘what do we need to do and what does the employee need to do to facilitate a safe and effective return, in order to manage the illness or injury they have?’”
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In New Zealand, an employer can require an employee to provide proof of sickness or injury for leave taken under the Holidays Act, where the absence has been for three or more consecutive calendar days. And it’s worth noting that three or more consecutive calendar days also covers the weekend.
So if an employee becomes sick on Friday and is away the following Monday - even though they were only away for two working days - the employer could still ask for a medical certificate and the employee would have to pay for it.
Whatever the illness or injury might be, Kynaston explained that often the situation comes down to a prognosis.
“Sometimes, particularly in the mental health or chronic pain space, the time the employee will return to work is nebulous and hard to predict,” he said.
“And trying to get certainty is often a lost cause. But you can operate and make decisions based on uncertainty. It’s just about being certain that things are uncertain.”
For example, if somebody has a broken leg the doctor will generally be able to say the person should be back in x weeks and will be limited in performing these activities for this period. So with rest and time they should be back to full strength in a set time frame. Whereas with conditions such as depression, anxiety orpost-traumatic stress disorder, it can sometimes be very difficult to predict.
“They are absolutely treatable and manageable. Someone can live with those conditions and work effectively,” said Kynaston.
“However, it can be very difficult to determine what that impact might be and when issues might arise again. And then things like medication changes, treatment changes or other things going on in an individual’s life can have an impact that is difficult to envisage.”
But that’s not to say the employer shouldn’t try, added Kynaston.
“Employers absolutely should do their best to assist employees with those sorts of conditions to get back to work or continue working. But certainty, particularly in the short-medium term, can be hard to achieve.”
