Sick Leave Entitlements
The winter season is in full swing, and more people are getting sick. Sick leave is being taken up left, right and center, but how many days are employees entitled to take?
Until recently, employees were entitled to 5 days sick leave once they’d completed 6 months in the job. Some employers allow their staff to start accruing sick leave from day one, but that is entirely at the employer’s discretion.
Parliament has now passed the Holidays Amendment Bill which doesn’t change the date the employee obtains a right to sick leave, but does increase the minimum sick leave entitlement from 5 days to 10 days per year. What does this mean for employees and employers?
The Holiday Act 2003
The current Holidays Act 2003 allows employees to take sick leave once they have worked with the same company for at least six months. This also includes employees who have worked continuously as well as those who have worked an average of at least 10 hours per week, including at least one hour a week or 40 hours a month. From the 24th of July 2021, employees will be entitled to 10 days sick leave. Employees will get the extra five days when they reach their next entitlement date. If an employer allows employees to accrue sick leave, employees will start accruing sick leave at twice the normal rate once the changes take effect. However, the Bill doesn’t lift the cap on the total number of sick days an employee can build up; that remains at 20 days (unless an employer allows employees to build up a higher leave balance or offers indefinite sick leave). In short, employees will be able to reach the maximum more quickly than they could under the old system.
Will the changes affect part-time workers?
If you only work part-time – say three days a week – you still have the same sick leave entitlement as someone who is working five.
What can happen when an employee takes too much sick leave?
Employees are entitled to a certain amount of statutory sick leave; however sometimes unforeseen issues can come up when an employee needs to take more leave than they are entitled to. This situation can be difficult to navigate, particularly when it is obvious the employee has a serious or persistent illness, but the employer really needs them at work doing their job. I recommend talking about the issue before it becomes an obvious problem and being transparent about the cause of the illness.
If an employee needs more sick leave than they are entitled to, they need to negotiate that with their employer. An employer is not obliged to provide more paid sick leave than the employee has accrued. Employers will sometimes allow employees to accrue a negative leave balance which works well in some situations. With employees accruing sick leave more quickly a negative sick leave balance may not cause too many issues.
Other options to consider are utilising annual leave (this needs to be agreed before it is utilised) and offering a period of unpaid leave. This will sometimes work if the employer can provide cover with casual or temp staff, although the sick employee will need to get by without pay for a period.
There are a few appalling employees and employers around and their stories can create distrust or put people in a defensive mindset. I’ve found it much harder to resolve disputes when trust issues arise and encourage people to deal with facts, rather than suspicions.
If an employee is so sick that they cannot do their job, an employee is entitled to consider medical termination. The cases show that employers cannot jump immediately to medical termination and their decisions must be informed by reliable medical information. Any decision on medical termination is subject to the usual employment law good faith obligations which require the employer to act fairly and reasonably before acting – that is, the employer must have a good reason to act and follow a fair process before acting. This means the employer must tell the employee what decision they are contemplating and must ask for feedback and further information.
If an employee does not cooperate over providing and obtaining accurate medical information, an employer is entitled to act on the information they do have. The trap here is the temptation to jump to conclusions or to rely on assumptions that do not withstand scrutiny.
Although the legal requirement to act fairly and reasonably seems straightforward, it can be harder than it appears in medical capacity cases. It is a good idea to get advice and input from an employer lawyer at this point as they will tend to look at the facts and not be so affected by past history between the parties.
Case Study
A 2013 Employment Court case provides an example of how sick leave sometimes gets misused and the approach employers must adopt when taking disciplinary action.
Mr Taiapa, who loved Waka Ama, was denied annual leave to attend a Waka Ama competition with two teams he coached. The employer denied Mr Taiapa’s leave request because his leave balance was already overdrawn and they needed him at work.
Instead of accepting a compromise offered by his employer, Mr Taiapa took sick leave based on a generalised doctor’s certificate. He then attended the Waka Ama competition and stayed away from work for a week.
The employer’s eventual decision to dismiss Mr Taiapa was justified, the Employment Court said, because they had acted on a reasonable suspicion Mr Taiapa had intentionally misled them with the doctor’s certificate, and they had fairly and reasonably investigated their suspicion before taking any action.
At each step, the employer met the requirements of Section 103A of the Employment Relations Act 2000 which require employers contemplating disciplinary action to only take action where the facts justify it and having followed a fair procedure.
Fairness may involve a range of factors, but the essential elements of fairness are: getting the facts straight, listening to the employee’s version, and genuinely considering the employee’s account, in light of the facts, before making a decision to dismiss.
Mr Taiapa’s employer met these requirements because the suspicions were reasonable. The situation was investigated fairly and openly, asking Mr Taiapa for more information and his response to key facts. They also had an open mind when considering his responses before acting.
The case shows that the statutory requirements for a justified dismissal are straightforward if the employer follows the process. If you would like advice on sick leave or other matters, please feel free to contact me on +64 21 901 735.
