Sick leave responsibilities clarified

12 Jun 2013
Author: Andrea Twaddle
 
In this article, Andrea Twaddle addresses the current law regarding the requirement to produce a medical certificate and what constitutes genuine sick leave.

Sick leave and medical certificates have been the hot topic this week. So what’s all the fuss about, and what the current law is around the requirement to produce a medical certificate?

There are two main reasons for an increased interest in sick leave and medical certificates:
  • Firstly; the New Zealand Medical Council is undertaking a review of the responsibilities of Doctors when completing a medical certificate. It is considering changes that include allowing more information to be provided on certificates and clarifying that if a patient is fit for some duties, these should be recorded.
  • Secondly; a recently released decision of the Employment Court clarifies what is considered to be genuine sick leave.
There are competing interests regarding how much detail should be recorded in a medical certificate. An individual’s right to privacy and the relationship of patient-doctor confidentiality could be eroded by a requirement for extensive disclosure. On the other hand, employers value information that can guide them regarding what duties an employee may be able to undertake on return from absence due to illness or injury and anticipated timeframes for an employee’s recovery. This information enables an employer to make a more informed risk assessment and better manage health and safety obligations, as well as their business operations in respect of that employee. Some employers may also welcome the requirement for increased information to act as a deterrent to employees considering taking a “sickie”.

Presently, employees are legally entitled to five days paid sick leave after six months of employment, and five days sick leave for every subsequent 12 months of employment. Employers may request proof of sickness, such as a medical certificate, without needing reasonable suspicion that the leave is not genuine. If this is requested within the first three days of leave, the employer will be responsible for the reasonable costs of obtaining that proof.

An employer should not make an allegation of dishonesty about the genuineness of an employee’s sick leave without reliance on a high standard of evidence, commensurate with the seriousness of that allegation.

Employers wanting clarity about what amounts to genuine sick leave can be guided by the Court’s decision in Taiapa v Te Runanga O Turanganui A Kiwa Trust. Bruce Taiapa worked for a private training institute in the Gisborne region. He requested leave to attend the New Zealand secondary schools waka ama championships in Rotorua. His employer declined the request, but offered three days leave as a compromise. Taiapa did not respond to the offer and it was expected that he would be at work the following week.

Taiapa came into work on the Monday but left early. He told his manager he was suffering from a long-standing calf injury. Unfortunately for Taiapa, later that day, a colleague saw him leaving town. When his manager attempted to contact him the following morning, Taiapa was unresponsive. The employer subsequently discovered a Facebook photo of Taiapa at the waka ama championships.

Taiapa obtained a medical certificate before returning to work. However, he was dismissed for misleading his employer. Taiapa challenged the dismissal.

The Court held that a proper process had been conducted by the employer and that dismissal was justified. Taiapa had misled his employer, which undermined the necessary trust and confidence in the employment relationship.

The Court’s decision also confirmed that it is not the place of employers to determine what is an appropriate way to recuperate from sickness or injury. Activities that assist a sick or injured employee’s recuperation are acceptable. It will only be where activities are inconsistent with recuperation, that an employer may question whether an employee is genuinely ill. These activities will obviously differ given the circumstances of an employee’s illness or injury.

Employers should keep an open mind about different modes of recuperation. Provided activities aid an employee’s recovery, they are likely to be deemed acceptable.

This article was first published in the Waikato Times, 10 June 2013.

 
 
 
Sick leave responsibilities clarified
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a regular commentator on employment law issues and is frequently sought as a presenter at client and industry seminars, as well as for the provision of advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz