There is a well known saying: if it ain't broke, don't fix it... And I can't help but think that it may have some application in relation to the Government's proposed changes to sick leave under the Holidays Act 2003.
The current law:
Under the Holidays Act 2003 as it is currently drafted, after six months' continuous employment, employees are entitled to five days paid sick leave per annum. This can be accrued to a maximum current entitlement of 20 days. Unused sick leave is not required to be paid out on termination.
A large proportion of employers provide employees with that statutory entitlement to sick leave and deal with additional claims for sick leave (in excess of the statutory entitlement) on a discretionary basis. Some employers provide additional or enhanced entitlements, such as 10 days sick leave per annum, and some employers do not specify an entitlement but provide sick leave on an 'as required' basis with a right for the employer to review in cases of extended absences.
One school of thought is that providing a specified entitlement to sick leave creates an entitlement mentality, whereby employees feel obliged or at least able to take their full sick leave entitlement, regardless of whether or not they are genuinely unwell.
The Holidays Act 2003 also provides a right for employers to request a medical certificate from employees in two situations.
The first is where an employee is absent for three calendar days, regardless of whether the days are working days. This provision was intended to give employers power to deal with what is known as 'Monday-itis' or 'Friday-itis' - an employee taking sick leave on a Monday or Friday to have a long weekend.
An employer also has a right to require an employee to produce a medical certificate where the employer has concerns about the genuineness of the employee's sick leave.
In those circumstances, the employer must put the employee on notice that the employer has concerns about the genuineness of the employee's leave claim, and must meet the employee's reasonable expenses in obtaining the proof (which is generally the cost of attending a doctor's appointment to obtain a medical certificate).
The proposed changes:
Amongst the National Government's proposed changes to employment law is a proposed change to the Holidays Act 2003, allowing employers to require employees to produce a medical certificate for an absence of one day, provided the employer meets the cost.
The only difference between the current law and the proposed change would appear to be the removal for employers to put the employee on notice that they have concerns about the genuineness of the leave being claimed.
That is, the change would allow employers to request a medical certificate in respect of any sick leave, with the only limitation being that the employer meets the cost.
What is the issue?
In my view, this proposed change isn't required and won't solve the issue employers have with the taking of sick leave.
The reality is that the issue for employers isn't with their ability to request a medical certificate, it is with the quality of the medical certificates being provided - which is a wholly separate issue.
In my experience, the frustration for employers comes from receiving medical certificates that simply specify: "Jimmy is unfit for work for [x] period". The proposed law change won't solve that.
A more effective change might be to give employers the right to specify the doctor that the employee attends, or legislative guidance/direction in relation to medical certificates and the information that the medical practitioner must provide.
Is sick leave an issue for you or within your workplace? Is it giving you a headache already?
Bridget Smith
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
