Three standard questions about sick leave answered

Sick leave is a commonly used entitlement that can benefit the entire workplace; when an unwell employee stays home, they protect their colleagues from the spread of illness, and we all know a healthy team environment is good for productivity!

Still, now and then, sick leave can be tricky to manage. Although the Holidays Act 2003 (Act) defines when a worker can use sick leave, there are some grey areas that can cause confusion.

Below, we look at some of the general principles of sick leave by answering three common questions from employers who use our HR Advice Line. Each response contains some practical solutions to help you handle these leave requests positively and proactively.

Reasons for sick leave as defined by the Holidays Act 2003 (Act)

Under the Act, employees may take paid personal leave where they’re not fit for work because of a personal illness or injury affecting them. However, an employee can also take carer’s leave in circumstances where they need to provide care or support to a member of their immediate family or a member of their household who requires care or support because of:

• a personal illness or injury affecting the member; or
• an emergency affecting the member.

Question 1: Can sick leave be used for a pre-booked surgery?

Yes. An employee can take sick leave if they’re undergoing a pre-booked procedure and they’re unfit for work as a result. However, this does not extend to appointments or consultations that occur before the procedure or surgery. For these appointments, the employee would need to use their annual leave.

For example, if an employee is having elective surgery and needs to attend a consultation the day before the surgery, that appointment would not fit the definition of personal leave under the Act. However, their recovery period after the surgery would.

You can request medical evidence stating that the employee was or will be unfit for work each time a worker requests to take sick leave with the proviso you pay for the consultation to get the evidence if the sick leave is less than three days. For a continuous absence of three days or more, it’s your employee’s responsibility to obtain the certificate at their own cost.

Question 2: Can my employee take sick leave to care for a sick partner or pet?

In short, no, but here’s the long version: your employee can use sick leave to provide care or support to a member of their immediate family or household. The Act defines “immediate family” broadly to include a spouse, de facto partner, child, parent, grandparent, grandchild, or sibling of an employee, as well as a child, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Although “immediate family” is broadly defined, a strict reading of the definition means it doesn’t extend to a casual or short-term partner – unless it’s a de facto relationship.

As significant as they may be to your employee, a pet is not included in the Act’s interpretation of “immediate family”. If you have a distressed employee who needs to be off work to take care of an unwell pet, you can agree for them to take annual leave or unpaid leave as alternative options.

Question 3: Is it ever OK to question or dismiss a medical certificate?

It depends – usually, an employer doesn’t have the right to question or dismiss a valid medical certificate that a qualified medical practitioner has issued.

After all, it’s the doctor, not the employer, who is the expert on illness or injury.

However, you may question a medical certificate if there’s evidence that your employee wasn’t sick or injured (such as when it appears someone has fraudulently altered the certificate) or that your employee was malingering (faking the illness for some reason).

Fraud is a serious issue for everyone concerned. I don’t recommend raising the possibility that a medical practitioner may be involved in fraud before seeking advice first.

If you believe that an issue exists, you could ask for verification of the actual certificate from the issuing practitioner or request a second opinion from a different doctor. Remember, if you do this, you’ll need to cover any costs to verify or retrieve a new certificate.

If this article has raised any questions or concerns or you’d like to learn more about how we can help your business, please contact our team of workplace relations specialists.