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Cold & Flu Season: Sick leave, ‘Sickies’, and Safety

Published 07 Jun 2016

The beginning of June signals the start of winter and the cold and flu season being upon us.  Employers need to consider whether Employees are entitled to sick leave, the genuineness of the ‘sickness’, and their obligations to provide a healthy and safe work place. 
Under the Holidays Act, Employees become entitled to 5 days sick leave on completing:

  • Six months’ continuous employment, or
  • A period of six months in which the Employee has averaged 10 hours of work a week and has worked at least one hour in every week, or 40 hours in every month, during the period. 

The Employee will continue to be entitled to an additional 5 days sick leave every 12 months thereafter provided the criteria continues to be met. Sick leave can be accrued up to 20 days but is not paid out if an Employee leaves.  Sick leave may be taken if the Employee, or the Employee’s spouse, partner, or a person who depends on the Employee is sick or injured.

It is important for Employers to remember that Employees are only entitled to be paid sick leave if they fall ill on a day where they would normally be working.   On agreeing to work, or being rostered on, a particular day, if the Employee then becomes sick and unable to work, the Employee is entitled to the pay they would have received for that day.  Where the Employee’s relevant daily pay is not possible to determine, they will be given their average daily pay.

Winter brings dark and chilly mornings and for many Employees the temptation to stay in bed and pull a ‘sickie’ can be too much.  The Holidays Act allows Employers to request proof of an Employee’s illness.  If the illness is less than three days the Employer is required to pay, if three or more days the Employee must cover the cost.  The Medical Council of New Zealand has given the following guidelines as to what should be contained in the medical certificates:

  • Date of examination
  • Time period of treatment
  • Clinical opinion that outlines activities that are safe for the Employee to undertake and the appropriate restrictions. 

Where medical certificates do not contain this information, and Employees consent, the Employer can request for further information to be provided from the medical professional.

Where Employees deliberately withhold information, the duty of good faith requires Employees to be ‘active and constructive’ as well as ‘responsive and communicative’ under the Employment Relations Act 2000. However, what appears as obstruction may in fact be the genuine ill health so it is important for Employers to be careful in advancing such submissions.

At the other end there are also Employees who refuse to take sick leave whilst spreading germs around the workplace and creating low productivity levels.  There is no power in the Holidays Act for an Employer to force their Employees to take sick or unpaid leave, however Employers may want to consider alternative options, such as allowing the Employee to work from home or requiring a medical certificate to confirm they are fit to work.

An Employee who has a long term illness may be in jeopardy of dismissal for medical incapacity.  There are high thresholds Employers have to meet if they do wish to dismiss the Employee and as a first step Employers should consult the Medical incapacity e-book.