Can You Question an Employee’s Sick Leave
Why employers need to approach sick leave issues carefully and legally.
As an employer you’ve probably questioned the genuineness of an employee taking sick leave from time to time. When time is money, dealing with fake ‘sickies’ deserves some thought, strategy and finesse.
Our staff are entitled to sick leave and no matter how it might feel at times, the vast majority of sick leave is genuine. However, if an employee is taking sick leave too regularly for what appears to be minor illnesses, or is providing less than robust excuses, there are some tools available to you. Or if you need an outsourced HR consultant to help, we can advise.
Spotting patterns and when to be concerned about sick leave
Common red flags like Monday absences or vague excuses.
We should not treat every instance of sick leave with suspicion. Employers are required to act in good faith, and should only launch into investigation mode when it is warranted. For example, enquiries are generally warranted if an employee presents a pattern of absences, such as calling in sick regularly on a Monday, or using an excessive amount of sick leave when the injury or illness is unclear or transient. It may similarly be warranted if you have evidence of dishonesty, such as seeing an employee at a social or sporting occasion when they claim to be home with a sick child.
Why you should require a phone call for sick leave notification
Improve communication and discourage misuse.
We recommend that you require employees to call if they will be off work sick. It’s too easy to send a text and then be non-contactable! By requiring a call to notify absence, you have the opportunity to check on the reason for absence and how long they might be off work. You can also ask for proof, if required.
Your right to request proof of sickness under NZ Law
Understanding your rights under the Holidays Act 2003.
Under the Holidays Act 2003, an employer can require proof of sickness or injury from an employee. Proof can be requested at any time, but the cost of obtaining that proof must be borne by the employer if the period of sick leave is less than three calendar days.
What to do when an employee refuses to provide medical evidence
Exploring your options for non-payment or follow up.
If, following a request, the employee does not furnish proof that they are (or a spouse or dependent is) sick or injured, the employer may refuse to pay the employee for that day.
How to Talk to Staff About Frequent Sick Days
Keeping it respectful, legal, and consistent with good faith.
Beyond that, the first step is to communicate with your employee. It can be helpful if a medical certificate has been supplied with little to no information (which is almost always the case). While privacy and discretion are undoubtedly important, employers are entitled to ask questions about the reasons for taking sick leave when this impacts their business and puts other employees under pressure.
We recommend the employee’s employment agreement works in conjunction with the employer’s policies to set the expectation that there will be a conversation. The employer should be precise about the information required and who it will be shared with, and for what purpose. In doing so, such requests will be reasonable and consistent with the obligation of good faith.
The Power of Return to Work Meetings
A proactive step for transparency and accountability.
Holding a return to work meeting after time off (even after just one day of absence) is a valuable tool to:
- Discuss the reason for the absence and follow up on a medical certificate, if required.
- Confirm if, and how the absence will be paid.
- Ensure there are no health and safety implications following their illness/absence.
- Make sure the absence was not due to an incident and , if it was, ensure processes were followed and discuss ACC.
- Review total absence – we regularly speak to employers (and employees) who haven’t realised how much time off has been taken until it is in writing in front of them!
Please remember that employees have the right to refuse medical treatment and/or to refuse to share the results with their employer. However, we would suggest if they take advantage of this entitlement, you may be able to draw certain inferences from the information available to you.
When Sick Leave Doesn’t Look So Sick: Assessing Evidence
What counts as suspicious and what does not.
There may be genuine reasons for the employee failing to provide medical evidence requested, so this should not automatically suggest dishonesty. Regardless of any explanation, the threshold for disciplinary action is unlikely to be met simply because the employee was unable to provide proof. However, without medical evidence an employer may be entitled to refuse payment, which should act as a deterrent for future ‘sickies’.
Disciplinary action is more likely to be warranted where an employee’s activities during sick leave appear inconsistent with their condition. Please note, they do not have to be chained to their sick bed in order to be unfit for work, and your assessment must be fair and reasonable. If you see an employee walking down the street while they are on sick leave, they may be on their way to a doctor or a physio appointment. However, if an employee is updating their Facebook with photos from Ruapehu or Kerikeri while they claim to be in bed with the flu, your suspicions will be well-founded and likely defensible.
Potential Disciplinary Action for Fake Sick Leave
What is considered serious misconduct, and how to handle it lawfully.
If you have sufficient evidence to show an employee is taking fake ‘sickies’, this may amount to dishonesty and/or misuse of sick leave, which could amount to serious misconduct and justify disciplinary action (including dismissal). However, before launching into disciplinary action, keep in mind you may need to be able to evidence that a fair and reasonable process was followed. This would include providing the employee with a fair opportunity to respond to the allegations against them, providing them with all relevant information, and giving them time to prepare their response.
The employee is also entitled to obtain support or representation. The decision-maker should be impartial and only make the decision after hearing from the employee and undertaking any follow-up investigations. Of course, the employer’s decision must be what a fair and reasonable employer could have done in all the circumstances.
Final Thoughts: Proceed Carefully and Fairly
Discipline requires process, don’t skip it.
In essence, there are a number of factors which need to be weighed up before taking disciplinary action against an employee on any occasion, and responding to unjustified sick leave entitlement is no exception. Get in touch if you have concerns regarding employee absence.
