Today, 1 September, is officially the first day of spring. And while some may think it’s an ‘old wives’ tale’, the start of spring tends to come with an increase in spring related flu and illnesses. This update covers the use of sick leave and what businesses can do to address illness at work.
Employees who can’t keep away from work
In each workplace there are those employees who, for any number of reasons, refuse to take sick leave. As an employer, what are your options when an obviously ill employee reports to work?
First, a friendly reminder to the employee that they should stay home when they are unwell may do the trick. Hardworking employees sometimes need reminding to use their entitlements!
But what if you have an employee who insists they are “fine” or otherwise refuses to take sick leave? There is a balance to be struck between ensuring entitlements are taken in a manner consistent with Holidays Act obligations, while also providing a safe place of work for everyone in the workplace (including both the sick employee and their colleagues).
If the employee is insistent that they are well enough to work, can they work from home? This would, at least, avoid contamination across a workgroup. If that is not feasible, it may, in some circumstances, be a “lawful and reasonable direction” to require an employee to stay home. If directed not to attend work, the employee can either take sick leave, annual leave, unpaid leave, or, as a last resort, paid leave which does not reduce their leave entitlements. Annual leave (given 14 days’ notice will not be possible) or unpaid leave should only be taken with the employee’s agreement.
But what if your sick employee won’t agree to anything? Directing an employee to use their accrued sick leave is not without risk, given there is no express power in the Holidays Act allowing this. We recommend proposing this, and then if the employee refuses, giving them the option of providing a medical certificate to say they are fit for work. The situation is more complicated if the employee has no sick leave left after a long winter. You could offer the option of sick leave in advance or get the employee to agree to partial payment. But in the absence of agreement, the Employment Relations Authority is likely to say that a fair and reasonable employer would not direct an employee to take unpaid leave in the event of a short illness.
Preventing outbreaks – No mask, no work?
As an employer, taking preventative steps to minimise sickness spreading could prove invaluable to the overall productivity of the business. A recent initiative by the Waikato District Health Board may have opened the door to a new strategy that a business could use to counteract this issue. It has, however, not been without criticism.
With its “Vaccinations for Health Care Workers” policy, the WDHB requires that all employees who refuse to have a flu vaccination wear a surgical face mask while undertaking clinical duties or being present in a clinical area. The requirement extends for the duration of the declared influenza season. The policy also includes a requirement for employees to disclose their vaccination status to the WDHB.
While the legality of such a policy is yet to be tested by the courts or the Human Rights Review Tribunal, it is at least arguable that the direction to mask or immunise could be a lawful and reasonable instruction in a hospital environment. But this is a view reached in light of the WDHB’s specific workplace and its public health obligation to limit the spread of illness. While many employers offer the flu vaccination to employees, it seems unlikely that a PPE policy of this nature could extend to general workplaces. If you do decide to introduce a similar policy in your workplace, ensure that you seek advice first.
According to media reports, failure to comply with the policy at the WDHB has already led to suspensions and a dismissal. It will be interesting to see if any disputes end up in litigation. We will be keeping an eye on this.
What do you need to know about your sick employee?
Where illness or injury requires an employee to take sick leave, the Holidays Act 2003 allows you to request proof of sickness from an employee. If this is after an illness of more than three days, the employee is to pay. If less than three days, the employer must bear the cost.
While in the United Kingdom this proof can take the form of specific work focused “fit note”, in New Zealand proof generally results in a medical certificate from the employee’s doctor. The Medical Council of New Zealand has issued guidance for general practitioners for what should be contained in medical certificates. As a result you can expect a medical certificate to set out:
- the date of the examination;
- the time period of treatment (if any); and
- the clinical opinion that outlines activities that are safe for the employee to undertake and the appropriate restrictions.
Where you are given a medical certificate that does not contain this information, you may seek further guidance from the medical practitioner using the Medical Council’s guidance as a reference. Employee consent will still need to be obtained.
Now is as good a time as any to do some spring cleaning and fine tune your sick leave policy (or alternatively, develop one). Sick leave policies are helpful to set and clarify your expectations of employees when it comes to taking sick leave. Your sick leave policy should cover:
Notification of illness or injury
You policy should clearly stipulate when, who and how an ill or injured employee is to notify the business that they are unable to make it to work. Consider whether you are happy for a manager to receive a text or an email in the morning, or whether it is important that the employee calls their manager directly (where possible, the night before). Either way, minimise confusion by having these details set out in the sick leave policy.
Proof of illness or injury
As explained above, the Holidays Act outlines an employer’s right to request proof of illness or injury. However, there can be a degree of confusion among employees as to when, in what circumstances, and at whose expense, proof can be required. A clear consistent approach to this will help manage expectations around the use of sick leave in your business.
Disciplinary action stemming from misuse of sick leave
Unfortunately, it is not uncommon for sick leave to be abused by employees (and for them to be caught out on facebook!). Your sick leave policy is the perfect place to set out that where it can be established that an employee has “pulled a sickie”, disciplinary action may result. This helps manage expectations around the use of sick leave and aims to prevent the situation described in the March Newsletter.
Please feel free to get in touch with a member of the team if you would like to discuss this, or any other issue.
This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.