With winter just around the corner, there will be the usual increase of illness occurring among staff and we thought it would be timely to provide some guidance around this.
When an employee has been away from work for a few days, it becomes a worry for an employer on multiple levels.
The obvious concern around the health and wellbeing of the employee.
Finding a replacement to complete the sick or injured person’s work.
If the employee has been off for a long time, the inevitable and often unanswerable question arises: how long till they return?
In New Zealand, an employer can require an employee to provide proof of sickness or injury for leave taken under the Holidays Act, where the absence has been for three or more consecutive calendar days.
In many instances, medical certificates are necessary to find out if an employee is genuinely sick or injured, and whether the cause is work-related or not. It is important to understand that as an employer, you cannot force an employee to go see a doctor or get a medical examination. However, you can send the employee home (suspend them) if they have good reason to believe the employee is impaired and cannot work safely or effectively.
The cost of getting a medical certificate depends on the length of sick leave and when the request is made. When an employer requests an employee show proof of their illness, the following rules apply:
Less than three days of sick leave: the employer must pay the doctor’s fee
Three or more consecutive days: the employee must pay the doctor’s fee
Under all circumstances: an employer cannot legally tell an employee which doctor or practice they must go to
And it’s worth noting that three or more consecutive calendar days also covers the weekend. So if an employee becomes sick on Friday and is away the following Monday - even though they were only away for two working days - you could still ask for a medical certificate and the employee would have to pay for it.
Further, if you request a medical certificate for proof of sickness or injury, and the employee does not provide this, you can refuse to pay them for the sick leave used. however, when requesting a certificate it is really important to be fair and equitable among all staff. If for example, you request a certificate from one employee who is absent for the flu but did not request it from another staff member under the same circumstances and there is no reason to believe the illness is not genuine then it may not be a reasonable request under the circumstances.
In many instances you will need to measure the impact of the employee’s particular condition on their ability to work. When it comes to diagnosing work-related health problems, a general practitioner (GP) may not be enough. A medical assessment from a specialist doctor can help decide whether an employee is fit to work or not.
The Medical Council of NZ states what GPs (and other specialists) are required to include on medical certificates. A summary of this is:
meet relevant legislation eg Privacy Act 1993, be written legibly, and in a way that it is understandable by a non-medical person
information should be accurate and based on clinical observation, with patient comment clearly distinguished from clinical observation
provide the necessary information required by the school and consented to by the patient. It might include information on activities the staff member can or cannot do and any workplace factors that have contributed to the illness or injury.
clearly identify the examination date and the period for leave or limitations on work (if any). Retrospective certificates should be clearly identified as such.
As an employer, once you have received a medical certificate there are a further two questions you should be asking yourself;
what do we need to do; and,
what does the employee need to do to facilitate a safe and effective return, in order to manage the illness or injury they have?’”
Whatever the illness or injury might be, often the situation comes down to a prognosis. Sometimes, particularly in the mental health or chronic pain space, the time the employee will return to work is nebulous and hard to predict, and trying to get certainty is often a lost cause.
But you can operate and make decisions based on uncertainty.
It’s just about being certain that things are uncertain.
For example, if somebody has a broken leg the doctor will generally be able to say the person should be back in x weeks and will be limited in performing these activities for this period. So with rest and time they should be back to full strength in a set time frame. Whereas with conditions such as depression, anxiety or post-traumatic stress disorder, it can sometimes be very difficult to predict or to determine what that impact might be and when issues might arise again. And then things like medication changes, treatment changes or other things going on in an individual’s life can have an impact that is difficult to envisage.
But that's not to say that you shouldn't try. And with cooperation from your employee and support from their medical team, almost anything is possible.
Disclaimer This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
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