Leave issues enough to make you sick
At this time of year many people choose to get a flu jab. I prefer to encourage people around me to get one, so I do not have to. I offer my staff incentives, including arranging for a nurse to deliver the injections, and providing lollies to those who do not cry.
This raises an interesting issue, though – can employers compel their employees to get flu jabs?
The short answer is no, because this is a medical procedure and requires informed consent. It might be possible for an employer to make flu jabs a condition of employment for new employees, because in accepting the offer they would be deemed to be providing consent. But otherwise this must remain a matter of individual choice.
Sick leave also inspires a range of commonly asked questions. One is what happens when employees have no entitlement to sick leave. New employees do not become entitled to paid sick leave until they have worked for a minimum of six months. The question may also arise when an employee has exhausted their existing entitlement.
If an employee is sick, the employer cannot and should not require them to come to work. Nor can an employee be dismissed simply because they have no entitlement to paid sick leave; instead, they can take unpaid sick leave.
Other issues arise when employers have doubts about the genuineness of an illness. In these cases they are entitled to request a medical certificate even for one day away, provided they pay for it.
If an employee is absent for three consecutive days (including weekends), they can be required to provide a medical certificate at their own expense.
Things get tricky when an employer still has reservations after receiving a medical certificate. It is not hard to persuade some doctors that you cannot attend work, which isn’t helped by the lack of information provided on medical certificates.
Unhappily for employers in this boat, they are required to accept the certificate on its face, unless it is fraudulent or a fake. In other words, if the doctor says the employee cannot attend work, that is generally the end of it.
Telecom found this out the hard way when it was criticised by the Employment Court for being unreasonably suspicious about the sick leave taken by employee Madhukar Narayan.
Narayan had applied for leave for a trip to Fiji for four weeks in December 2011 but was only granted three weeks’ leave until December 27. On that day, he emailed Telecom stating, ‘‘I seem to have caught a bad virus,’’ and advised that he would not be coming back to work for a few days.
Narayan then returned to New Zealand and to work on January 3. He provided a medical certificate for his illness on January 17 – there was some delay in getting hold of it as he had left it in his Fiji hotel room. His manager suspected it had been falsified. The certificate did not state the name of the practice or the doctor issuing it.
As a result of the employer’s doubts, and following a disciplinary process, Narayan was dismissed. On appeal, the court held that Telecom had ignored a key fact that totally undermined the basis of the dismissal. It turns out that Narayan had visited a doctor on the day he had claimed to.
The dismissal was found to be unjustified and Narayan was awarded lost wages plus $7000 compensation for humiliation and distress.
One other issue is employees coming to work sick. Can an employer can send workers home?
Given the overriding importance of health and safety in the workplace, if an employer has genuine reason to believe that an employee is a hazard to themselves or other people, they could, following consultation, require them to leave and obtain a medical certificate to confirm that they are safe to be in the workplace.
At this time of year, myriad tricky issues relating to sick leave are highlighted. The employers that tend to run into difficulties are those that are intolerant of employees taking sick leave. Ironically it is these types of workplaces where the highest levels of sick leave are taken.