Taking a sickie? Here are your rights

It is no surprise every winter Google searches for “sick leave” peak.

The Holidays Act 2003 made it clear that full time and part-time employees are entitled to 10 working days of sick leave every year and can be asked to provide proof of sickness.

But for matters that are not specified in the law, what other guidance is there?

Senior solicitor at Auckland Community Law Centre Jay Rajendram said managers can legally ask you to phone them.

He said while the law does not state how someone should notify their manager, it depends on what has been formally and informally agreed.

For example, if the employment contract states that you must call, then the employee is legally obligated to follow the procedure.

But Rajendram said it's not necessarily a nailed down policy, there are two important principles that guide the discussion.

"There's some key fundamental principles that underpin employment law. One is good faith. So both parties have an obligation to deal with each other in good faith, and the other, from an employer's perspective, is everything that they do should be the actions of a fair and reasonable employer. If an employer acts in a way which is not fair and reasonable, then they potentially open themselves up to a personal grievance or some kind of claim from the employee."

Rajendram said the answer to this question is a straight "no".

"An employer cannot legally force an employee to take annual leave or unpaid leave instead of sick leave if the employee is genuinely sick and has sick leave available. Further, a medical certificate is not required before taking sick leave."

Rajendram said an understanding employee may consider the employer's request.

"But I would say all things being equal, if you explain those circumstances to your employer, they should still let you take sick leave, despite the fact that you can't get a medical certificate until about a month later. "

A single Rapid Antigen Test costs around $10, and some people may be eligible for free tests. It provides quick results and some test packs can now provide results for Covid, Influenza A and B, and Respiratory syncytial virus.

But Rajendram said employers may chose not to accept it.

"Section 68 of the Holidays Act 2003 states that proof of sickness may include a certificate from a health practitioner, stating that the employee is not fit to attend work. It does not limit proof to a medical certificate. Despite this, it could be reasonable for an employer to ask for more evidence in the case of a covid related absence. This could, in some circumstances, include asking the employee to provide a medical certificate or undertake a supervised RAT test.

"However, in my own experience, a positive RAT test has generally been sufficient proof."

Rajendram said the employer will have to pay if they ask for a certificate for leave when the employee was away for less than three calendar days.

But if it's the employee's responsibility to pay, there should be room for discussion.

"You could in good faith communicate with your employee that the sick leave was taken for a genuine reason, but also explain the circumstances around why you can't afford it and your circumstances. If you act in good faith and are open and transparent around why you can't get a medical certificate, then your employer also has an obligation to consider that fairly and reasonably." 

Rajendram said in practice, employers may have different relationships with their part-time and casual employees.

"Because there may potentially be less trust between casual employees and their employers, relative to full-time employees, employers of casual employees may be more inclined to exercise their right and ask their employees for proof of sickness for one or two days of sick leave. Of course, the employer will have to bear the reasonable costs incurred by the employee in obtaining such proof."

The law said employers would have to pay for the sick note if they ask for it on day one and two of the sick leave, regardless whether the employee is working on those days or not.

"Practically speaking, with casual employees (and potentially some part-time employees), there may be limited circumstances where an employee is sick for a period of three or more consecutive calendar days and where that affects the employee's presence at work. As a result, there may be limited circumstances where a casual employee is sick and an employer can ask for proof of sickness, where the cost of that proof is to be borne by the employee."