Managing sick leave

14 March 2018

Do you have employees on rosters in say, a hospitality, retail or residential care setting? A recurring issue especially among new employees in these sectors and especially in Queenstown seems to be the taking of one or two shifts off in any given week. How do you deal with this issue?


In Queenstown our members involved in these areas report that staff are often young, highly mobile and not necessarily settled and are also “having a good time” and are faced with the following type of scenario.


A staff member says to you “John’s just rung and said he’s sick again and can’t come in for his shift this afternoon”. Your records show that over the 8 weeks since he started work he has missed one or two consecutive days in 6 of those 8 weeks. You grind your teeth and wonder what to do.


One of our members has sought clarification as to whether they can ask for a medical certificate at an employee’s expense for unpaid sick leave - that is, in this scenario, during the first six months of employment, as of right. Whether that is correct or not depends on a number of factors that we outline below but we do not believe it is the starting point to resolve this issue.


To unpick the issue we will take a quick look at the entitlement to paid sick leave under the Holidays Act 2003 (“the Holidays Act” or “the Act”) and sick leave not under the Act, then at best practice.


Sick leave under the Holidays Act

The Act sets out a code or set of rules but only about sick leave required to be paid:


The Act sets out a code or set of rules but only about sick leave required to be paid:

• after the first six months of employment; and

• that is up to 5 days in each calendar year after the first six months (or of course, up to 20 days if the employee has been able to carry over unused days from year to year).


For such paid sick leave the Act says that an employer may require an employee to produce a medical certificate for 3 or more consecutive calendar days of sickness or injury at the cost of the employee i  and can require proof for periods of less than 3 calendar days if the employer asks promptly and pays the employee’s reasonable costs for obtaining the medical certificate.ii


Sick leave not under the Holidays Act

This is sick leave that occurs:

• in the first six months; and

• for leave in excess of the paid sick leave entitlements under the Holidays Act (up to 20 days in any one year accumulated at the rate of 5 days for each calendar year after the first six months).


Generally this type of sick leave is unpaid but can you ask the employee to provide a medical certificate at their cost for 1 or 2 days of such leave?


The first step in answering that question is to look at the Holidays Act. It is silent on this issue apart from s68(2) of the Act. iii  In plain language it says that just because an employer can require proof of sickness or injury for more than 3 days consecutive calendar days of paid sick leave under the Act, this does not prevent an employer and employee from agreeing that the employee will produce proof of sickness or injury for paid sick leave in addition to that provided under the Holidays Act so that doesn’t really help in answering the question.


The next step in answering that question is to look at your employment agreements. If they cover this situation then they must be followed. If not, then we don’t think you can unilaterally ask for a medical certificate at the employee’s cost for a past absence.


The logical starting point in resolving the issue is not so much about medical certificates and who pays for them but to start a discussion with the employee and give them the chance to explain why they are needing such regular unpaid sick leave. You can explain the impact it has on the business and on other staff who have to cover their absences. Decide with the employee on what the next steps are and the consequences of more sick leave absences including the requirement for medical certificates and who pays for them.


If the absences continue then meet with the employee again. In this situation you are entitled to ask what the sickness is and when they expect to be able to return to work fulltime. Consider tightening the rules around notification of absences. Consider terminating under the trial period if you have one.


We help employers on a daily basis with these issues. We are your Association – please feel free to ring for your initial free consultation on each employment issue you face. We also provide ongoing support at member rates.

Grant Walker, Advocate

 


Legal Team


Diana Hudson, Managing Solicitor 03 456 1804 / 021 816 469 diana@osea.org.nz

David Browne, Solicitor 03 456 1812 / 021 225 6938 david@osea.org.nz

Angela MacKenzie, Solicitor 03 218 7962 / 021 756 809 angela@osea.org.nz

Grant Walker, Advocate 03 455 5165 grant@osea.org.nz




i Holidays Act 20013: s68(1)

ii Holidays Act 20013: s68(2)

iii Full wording is: Subsection 1 does not prevent an employer and employee from agreeing that the employee will produce proof of sickness or injury for sick leave provided to the employee in addition to the entitlement set out in section 65.