Steps to take if you suspect sick leave is not genuine

If you get the process wrong you could end up paying heavily to the lead swinging employee as one employer discovered.

The employer discovered that an employee had gone fishing on the day they reported in sick.  This only became known when the employee represented another employee on a similar issue.  Unfortunately, the employer did not get the process correct for dealing with the issue and was ordered to pay many thousands of dollars despite a finding that the employee was not genuinely sick.

An employee is entitled to a minimum of five days’ paid sick leave each year after they have been employed for six months.  This leave can be taken if the employee is sick or if their spouse, dependent child, or parent is sick.  If the leave isn’t used, it can accumulate up to a maximum of 20 days.  These are minimum requirements.  An employer can provide greater sick leave entitlements for an employee in their agreement.

What does an employer do when they are confronted with an employee who takes sick leave where the employer has concerns that the employee is not genuine?

Where the period of sickness or injury spans three or more consecutive days (including non-work days) the employer may require the employee to produce a medical certificate at the employee’s cost.  The employer should make this clear to the employee when he or she reports in sick or injured on the third day.  This gives the employee the opportunity to obtain the necessary certificate.

Where the employer has reasonable grounds to suspect that the leave is not genuine, the employer may require proof before the three day period.  The employer should:

• Inform the employee of his or her suspicions that the leave being taken is not genuine.  Important points to note are that the employer cannot pick a doctor for the employee and that the employer would obviously need very good grounds to suspect at this stage.  For example, if the employee is consistently sick on Fridays or other evidence is available such as information that they planned to take the day off for other reasons;
• Require a medical certificate; and
• Advise the employee that the employer will cover the cost of the certificate.

In some circumstances, abuse of sick leave may constitute misconduct on the part of the employee and could ultimately justify dismissal.

If you are investigating matters as a disciplinary issue after initial inquiries leave you believing the sick leave may not be genuine then you need to follow the steps set out in our Guide to the Disciplinary Process available by emailing me on aknowsley@raineycollins.co.nz or from our Downloads section.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.