Sick and tired of sickies

When can employers require staff to provide a medical certificate? Employment lawyer Julia Shallcrass explains all.

You may have heard the catchphrase: "I don't take sick days when I'm sick - I like to treat myself to them when I'm well."

What do you do when you are fairly sure that your staff member has thrown a sickie without having caught anything? Do you wait for their spectacular story of sickness, and wish them well for a speedy recovery?

If you're the type who would ask your employee for a medical certificate, read on my friend.

The purpose of the Holidays Act 2003 is not to encourage workers to out-perform their colleagues in taking every sick day possible. Unfortunately for us humble workers, we are only entitled to five sick days per year if we're actually sick or injured or our spouses or dependents are sick or injured. Unless we have more generous provisions in our employment agreements, we're otherwise required to attend work as per usual, despite our employers coughing up to pay our colleagues cooped up in their cots.

New Law on medical certificates

Employers, you can now ask staff members to provide you with a medical certificate on their first day of sick leave - without having any reason for suspicion.

From 1 April this year, there was a change to section 68 of the Holidays Act 2003, which saves you from spying on your employee's car at the ski field or bathing at the beach. And it definitely saves you from photographing your supposedly sick employee at the airport flying in from a long weekend away. (The Employment Relations Authority did not take kindly to this covert and underhand behaviour, so please don't try this at work).

If you want to ask your employee to provide you with a medical certificate on as soon as their first day of sick leave, you need to ask for it as early as possible. You also need to agree to pay the reasonable costs of obtaining the medical certificate.

How will this benefit employers?

This law change was designed to make it easier for employers to ask for medical certificates from the first day their employee is sick. You don't need to prove "reasonable grounds" for suspecting they're pulling a sickie.

Some employers may benefit by getting their employees some medical attention, so that they return to work at full speed.

Perhaps the fear that an employer might have the audacity to ask for a medical certificate will deter some hung-over staff from adorning fluffy slippers on a Monday morning.

Employers could be forgiven for thinking that a medical certificate will specify the nature of their employee's ailments but it is unlikely that you will be able to pry too far, with patient privacy at issue. You may want to ask your sick or injured employees to provide you with a diagnosis on their medical certificates.

If you're an employer who has seen one or two ‘fake' medical certificates bought online in your time, you might be left wondering that their ailments mean:

Sleep deprived - Predisposed to lying in, lounging on lazy-boys, and chocolates in bed.

Migraine - Headache from boozing at the back of the bar where they just happen to be moonlighting as the beer-swilling barman.

Stressed - Suffers from severe panic attacks at the idea of having to start the computer. On a good day, she wants to throw the computer out the window, and on a bad day wants to jump out after it. (This sums up my usual day, but note that I'm morally opposed to sick days. Others should suffer too if I'm unwell.)

Costs of asking for a medical certificate

There are some obvious costs in seeking a medical certificate, given that you have to pay 'reasonable expenses' in obtaining it. I can't think of too many employers who would want to pay upwards of $90 in a doctor's consultation every time their employee is unwell.

When you discuss your employee's sick day in a phone call, you should let your employee know whether you are willing to pay for a taxi fare or contribute towards fuel. If your employee lives rurally and needs to drive 60 kilometres to the nearest doctor, you may need to contribute towards the costs of travel.

There are some obvious down-sides for any devastatingly sick employees. If you are an employer, will you require your staff to go to the doctor, when paracetamol and rest would do? And what happens when your snorting staff members suffer from the swine flu? Against public health warnings, should you send them to the doctor, too?

There are just so many questions, it almost makes me complain of a headache, put this blog to rest, and head for bed.

Alternative to medical certificates

Rather than asking your staff to supply you with a medical certificate, you can encourage a culture that stops 'sickies' in their wake:

* Pay your staff according to output, such as commission or bonuses;
* Keep regular tabs on your staff, such as checking their Facebook status, which is easier if you're friends in cyberspace;
* Allow your staff a "duvet-day" or "fun day" each year, so that your employees can honestly say that they're not unwell, just sick of turning up to work.

Creating a culture of trust and confidence might mean you don't need to ask your employees for a medical certificate every time they call up sick.

All's well that ends well

The law change provides employers with a fall-back position: you can now ask for a medical certificate on the first day of sick leave regardless of whether you have 'reasonable grounds' to suspect a sickie.

I would suspect that this law change is likely to result in an increase of medical certificates. If you are sick and tired of law changes that only seem to benefit lawyers, here's to good health in the medical profession!

Julia Shallcrass
Senior Solicitor
Janet Copeland Law

julia.shallcrass@jclaw.co.nz Phone (03) 450 1817 www.jclaw.co.nz

Webinars

Find out more about the disciplinary process and sick leave in upcoming Janet Copeland Law webinars:

* ‘Investigating Misconduct' - 19 October 2011
* ‘Sick Leave and Long Term Absences' - (live recording)

Email Julia Shallcrass for further information about Janet Copeland Law webinars: julia.shallcrass@jclaw.co.nz