People get sick, especially in winter. However, if sick leave is excessive or you think an Employee is not genuinely ill, here are some ideas to manage absenteeism.
Requesting Medical Certificates
An Employer has the right to request a medical certificate from an Employee in two cases: If the Employer does not believe the illness is genuine:
1. Even through the employer has to pay for the medical appointment to obtain the certificate, with it being highly likely that a certificate will be obtained regardless the fact that the employer is requesting this places the employee in a position of higher accountability for their absence. Where the certificate is provided the employer can provide instructions to the employee requesting more specific details regarding the nature of the illness or injury – rather than the blanket excuse of “I have examined the patient and In my opinion they are unfit for work for …. Days”. The Doctor is obligated to advise what duties the employee cannot perform, or whether they should be on light or restructured work for a short period, with the employer then ultimately being able to decide whether they are able to provide work to the employee (despite their illness or injury) during that period.
2. If the Employee is off work sick for three consecutive calendar days.Obtaining the medical certificate is at the Employee’s cost. If an Employee calls in sick on a Friday and again on the Monday, you can request a medical certificate at their cost (because Monday is the forth sick day).
A good system for managing Employee time off is marking on a calendar the days taken as sick leave, bereavement leave, unpaid leave, lieu time and annual leave. This shows a clear picture of time taken off work.
When a staff member reaches around 8 days of sick leave in a year, it’s a good idea to have a friendly chat and let the person know they have had several sick days. The aim of the catch-up should be to support their health and wellbeing and provide an opportunity for the Employee to advise you of any concerns. For instance, the Employer may not be aware of an underlying medical issue, some personal circumstances affecting attendance or some workplace behaviours that are making the Employee avoid work.
There is a process known as medical incapacity, which can be implemented in certain circumstances, either:
- When an Employee is absent for a prolonged period (like after surgery) or
- When an Employee is absent on an intermittent basis (due to an ongoing illness or injury).
Incapacity relates to an Employee’s inability to fulfill the requirements of their Employment Agreement due to illness or injury and may be grounds for termination of employment. However, the Employer has obligations in this process and any decision to terminate must be both substantively and procedurally justified.
In general, Employers must approach managing sickness with caution:
- An Employee must not be punished for being sick as they may have a claim under the Human Rights Act 1993 and/or a personal grievance claim.
- Employers have an obligation under the Employment Relations Act 200 to act in good faith.
- Any procedure implemented must be done with procedural fairness and any decisions must be fair and reasonable.
At Russell Drake Consulting we work with Employers in all industries on Human Resource and Employment Relations. Don’t hesitate to get in touch if you’d like some advice on any of the topics in this article, we’ll be happy to help.
The Employer File is written by Rose McVeagh, of Russell Drake Consulting Ltd., Specialist Employment Relations Consultants who act exclusively for Employers - see www.russelldrakeconsulting.co.nz or phone (07) 838 0018.