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Can you request proof of sickness from your Employees?

A perpetually healthy workplace is the optimal state for all concerned but even the most robust among us (or their child/ren, spouse, or other dependents) can be challenged by ill health. Sick leave is a seldom considered part of an employment agreement until there is reason to bring it into focus, and then it’s well worth knowing what your obligations and rights are.

The short answer is yes, an employer can request a medical certificate after a two day sickness (at the employers cost) but you cannot force your employee to produce one for you. However, as an employer, if you ask your employee for proof of sickness and they refuse, then it is up to your discretion as to whether you grant sick leave for that period.

Similarly as an employer you cannot force an employee to have a medical exam, however, if you have good reason to believe that an employee is impaired (unwell or injured) whilst performing their duties for any reason (workplace related or other), then you may choose to suspend an employee, subject to the usual legal requirements around suspension.

Think about the 3 Day Rule

When considering proof of sickness we encourage you to remember the 3 day rule.
An employer has the right to request medical proof that an employee is sick once they have been sick for three or more consecutive days.

If an employee is sick or injured, or cannot attend work because their spouse, partner or dependent is sick or injured, for less than three days, and an employer asks for proof of sickness or injury, they must ask as soon as possible and pay the employee back for the cost of getting the proof, eg a visit to the doctor.

If an employee is sick or injured, or cannot attend work because their spouse, partner or dependent is sick or injured three or more days in a row, even if these three days are not all days the employee would have otherwise worked and the employer requests proof, then the employee must meet the cost of a medical appointment.

In some circumstances, an employer can request proof of illness or injury within three consecutive calendar days, but the employer must agree to pay for the doctor’s fees.

Usually an acceptable proof of sickness is a medical certificate from a doctor saying that the employee is sick or injured (or their spouse, partner or dependent) and is not able to work or carry out their duties. No private details of the illness are required to be disclosed. Additionally, an employer is not entitled to tell an employee which doctor or practice they should attend.

How much sick leave are my employees entitled to?

There are two main criteria to be aware of when considering sick leave entitlement and this is clearly set out by the Employment Relations Act. All employees (including part-time and casual employees) are entitled to five days of sick leave if:

  1. they have six months’ current continuous employment with the same employer, or
  2. they have worked for the employer for six months for an average of 10 hours per week, and at least one hour in every week or 40 hours in every month.

Thereafter for every 12-month period, each employee gets at least five days’ sick leave.
However, if in any given year an employee does not meet one of the two main criteria, then they do not get any new sick leave entitlement. But they can use any unused sick leave balance from the previous year/s.
Then, as soon as an employee meets the criteria again, they may re-qualify for sick leave.

How should I be notified of sick leave requests – text, phone, email?

Your employee needs to tell you as soon as possible if they are sick or injured and need to take sick leave. A phone call is the best way to notify an employer, but every workplace will have its own systems to advise sick leave.
Our recommendation is that you do not encourage text messaging or email as a form of notification. As an employer you have a responsibility to ensure your employees are safe, even when on sick leave and a phone call is often best way to determine that your employee is otherwise ok. Notification to a line manager and an HR department when relevant, is best practice.

What if I employ part-timers?

Another consideration is that sick leave entitlements are not pro-rated at all. For example, even if a part-time employee only works three days a week, they still get five days’ sick leave a year and can accumulate up to 20 sick days a year.

Does unused sick leave get rolled over?

Any unused sick leave at the end of a 12-month period can be carried over and added to their next year's entitlement up to a maximum of 20 days (as per the Holidays Act 2003). For example, after 6 months' employment, an employee gets at least 5 days’ sick leave. If the employee doesn’t use any sick leave during the following 12 months, they will still get another 5 days’ sick leave on their entitlement date, which will give them a total of 10 days’ sick leave.

It is worth noting that the individual Employment agreement or schedule, or a specific workplace policy can document agreement between Employee and Employer to the accumulation of more than 20 days sick leave.

In the event of an employee leaving their place of work, unlike annual leave, any unused sick leave cannot be cashed-up or be calculated within any final payment to the employee, unless this is specified in their employment agreement or schedule.

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