Sick leave and incapacity

We are now in the midst of winter and have been fielding calls about sick leave, ongoing illness and the difficulty of managing performance issues when there are health issues. We’ll cover all these areas in brief with links to the HealthyPractice content.

Sick leave

Under the Holidays Act 2003, all employees (including part-time and casuals) are entitled to 10 days’ paid sick leave each year if they have either:

• worked continuously for 6 months, or
• over a period of 6 months worked 10 hours per week on average, and at least 1 hour each week or 40 hours each month during that period.

Sick leave is not pro-rated, a part-time employee who works one day per week is still entitled to 10 days sick leave.  Sick leave is calculated in days, but most employers allow it to be taken in half days, and some collective agreements allow for it to be used in 2-hour blocks.

Sick leave

• Can be used when the employee, their partner or one of their dependents is sick or injured.
• Under legislation entitlement that is unused can be carried over to the next year to a maximum of 20 days. Some collective agreements are more generous.
• The requirement to provide medical certificates will be detailed in their employment agreement.

Read our full content at this link Sick leave (healthypractice.co.nz)

Ongoing sick leave/incapacity

An employee who is constantly taking sick leave, or who is away for an extended period of time as a result of their ill health poses a number of difficulties for you. On the one hand your business must continue to operate and difficulties may arise as a result of their absence.  On the other hand, you have obligations to carefully manage the employee and their sick leave, before you are in a position to be able to terminate their employment. This is not easy.

First and foremost, once an employee has used up their sick leave entitlement, you have no obligation to continue paying sick leave.

In rare cases if the work environment may have contributed to the illness, your obligations of good faith may require you to take different steps.  If you believe you could be facing a situation like this, or where your employee alleges that this is so, you should take legal advice. It is not uncommon for employees who are undergoing disciplinary action to claim that they are ill (usually due to stress), and to go on sick leave.  In some cases they may even request the employer to continue paying sick leave even though their leave entitlement has run out.

Where your employee has used up all their sick leave, you may continue paying sick leave if you choose to do so.

When dealing with ongoing sick leave or incapacity, each instance needs to be dealt with on its facts and the individual circumstances. 

Please read our content at this link Incapacity (healthypractice.co.nz) and be in touch if you wish to discuss your situation.

Managing performance when there are health issues.

If you have an employee who is usually a good performer and then you notice performance issues, the first step would be to have a chat with them to ensure they are okay. 

The process you undertake will depend on the employees’ response to your question and the seriousness of the performance issues you have uncovered.  Your actions may also be determined by the employees’ role, especially if there could be patient safety concerns.

When the employee discloses health concerns you need to take this into account if you are going to undertake a performance management process, and ensure they are certified medically fit to be at work.

The content we have on HealthyPractice to help you is:

• Managing underperformance (healthypractice.co.nz)
• Incapacity (healthypractice.co.nz)
• Managing mental health issues in the workplace (healthypractice.co.nz)
• Case law - mental health and performance management (healthypractice.co.nz)

Remember you can call the HealthyPractice team on 0800 800627 or email business@mas.co.nz