What Can I Do When An Employee Takes 'Too Much' Sick Leave?
When a team member is often away sick, a small business feels it. Shifts need covering, deadlines move and other employees may pick up extra work. You may be wondering how to keep things running and whether you can do anything about the absence.
As an employer, there are things you can do to address excessive sick leave. But first you need to understand why it is happening as different employees will need to use their sick leave for different reasons and there are a number of different ways to address it.
What does “too much” sick leave mean?
There is no number of sick days that automatically counts as too much under New Zealand employment law. Eligible employees generally receive 10 days of paid sick leave each year after meeting the qualifying rules. Unused days can carry over, up to a maximum entitlement of 20 days. An employee may be entitled to use sick leave when they are sick or injured, or to care for a sick or injured partner or dependant. You will need to check your agreement or policy as it may may offer more than the legal minimum.
Taking all 10 days is not, by itself, a reason for a warning. Nor does a person who has run out of paid sick leave automatically become well enough to work for the rest of the year. The idea of 'too much' should be looked at as a prompt to look at the facts: How often is the person away? For how long? Can the work be covered? Is there an ongoing health concern? And s the employee following the agreed notification process?
A run of short absences may need a different conversation from one long period off work. Avoid assuming a pattern proves dishonesty. You need information, not a hunch.
Check your records, documents and the legislation
First things first, check the employee’s leave balance, dates of absence, employment agreement and relevant policies. Make sure leave has been recorded and paid correctly. Check whether the employee gave notice as soon as practicable and followed a reasonable workplace process for reporting an absence. Be careful when reading a pattern. The records help you ask fair questions; they do not answer those questions for you.
If the employee asks to use sick leave, you can request proof of sickness or injury, usually a medical certificate.
For an absence of less than three calendar days, ask as soon as possible and reimburse the employee’s reasonable costs of obtaining proof.
If the employee has been sick for three or more consecutive calendar days, you can ask for proof on or after the third day, and the employee generally pays the cost.
Calendar days include weekends and other days they would not have worked.
A certificate supporting sick leave does not necessarily tell you everything you need for a longer term return to work plan. If you need more information about work capacity, explain why and seek information relevant to the role, with the employee’s involvement.
Talk to the employee about what is happening
Arrange a time to speak privately. Tell the employee what you have noticed, without accusing them of abusing leave. Explain the effect on work in concrete terms and ask how you can help. For example:
“You’ve had several periods away recently. We want to make sure we are supporting you and planning cover fairly. Is there anything affecting your ability to attend work that you would like us to know about?”
Listen before suggesting a solution. An employee may be managing an illness, caring for a child, recovering from an injury, dealing with a workplace issue or facing a temporary problem. They may not know yet when things will improve. Useful questions include:
Is this likely to be short term, or may it continue?
Are there parts of the job that are difficult at present?
What duties can you do safely, and are there duties you should avoid?
Is anything at work contributing to the problem?
What changes might help you work or return to work?
When would it be useful to review the arrangement?
Ask about the information needed to plan work, rather than demanding a full diagnosis or medical history. Explain who will see any health information and keep it secure. If you need medical advice about capacity or likely return dates, discuss the purpose and scope of a request with the employee first. They may decline to release medical information. You will then need to act fairly on the information available, rather than guessing what it would have said.
Document what you discussed and what happens next, giving the employee a chance to correct any errors.
Identify potential options and solutions
The right option will depend on the employee, the medical information available and what your business can reasonably manage. You might agree on a temporary change to hours, lighter duties, a phased return, different tasks or more predictable shifts. If the employee is off work, agree on a sensible level of contact and a date to review the situation. Check whether a workplace issue needs attention as well.
If the employee has used their paid sick leave, discuss what other leave may be available. Options can include annual leave by agreement, leave without pay, or extra paid sick leave if your business offers it. Do not assume you can require annual leave to be taken just because sick leave has run out. Check the applicable rules before making any decision about leave or pay.
For an ACC injury, work with the employee and ACC on rehabilitation and a safe return. Specific ACC duties and payment rules can apply, so take advice before changing arrangements or considering an end to employment.
Put any agreed support in writing. Set a realistic review date. This gives everyone a clear plan without pretending that recovery can be predicted to the day.
What should you avoid doing?
Do not punish someone simply for using an entitlement. A warning for legitimate sick leave can turn a manageable absence into an employment dispute.
Do not assume a medical certificate is fake or demand a diagnosis. If there is a specific concern, put it to the employee fairly and let them respond. A certificate often confirms that a person cannot work without explaining the condition.
Do not pressure an unwell employee to work or come back too soon. Consider safety, the type of work and any medical restrictions. The same care applies if the illness or injury is covered by ACC.
Do not share private details with the rest of the team. Colleagues may need to know how work will be covered. They do not need the employee’s health history.
Do not jump straight to dismissal. An ongoing illness requires up-to-date information, consideration of alternatives and a fair process. Frustration about rostering is not enough on its own.
What if the absences continue?
First, identify the issue you actually need to resolve.
If the concern is how absences are reported, remind the employee of the reasonable process, check that they understand it and ask about any barriers to following it. Deal with a repeated failure to notify separately and fairly. Do not label an illness as misconduct.
If the concern is whether the employee can do the job in the future, you may need medical advice about their capacity, likely time away and possible adjustments. Give the employee the information you are relying on and an opportunity to comment. Review what support or alternative work is practicable, how long the role can reasonably be held open and the effect of the absence on the business. The answer will depend on the particular job and circumstances; there is no automatic dismissal date.
If it appears the employee cannot return to their role within a reasonable time, medical retirement may be discussed, but it requires both sides to agree. Dismissal for medical incapacity can be considered only after a fair process and a reasonable assessment of the evidence and alternatives. Tell the employee if their employment may be at risk, allow time for a response and consider that response before deciding. Seek tailored employment advice at this stage, particularly where a disability, ACC claim or work-related health issue is involved.
The aim should be to understand the absence, support the employee where reasonably possible and make a workable plan for the business. A calm conversation early on often gives you more useful information than a strict letter sent after months of frustration. When the situation is long term or complex, good records, current medical information and a fair process matter even more.
FAQs
Can I give an employee a warning for using all their sick leave?
Generally, you should not warn someone simply for taking sick leave they are entitled to use. If there is a separate issue, such as repeatedly failing to follow a reasonable absence reporting process without good reason, address that issue on its own facts and follow a fair process.
Can I ask for a medical certificate for one day off?
Yes, but only if you feel it is necessary. If the employee has been sick for less than three calendar days, you must reimburse their reasonable costs of getting it. For an absence of three or more consecutive calendar days, different cost rules apply.
Can I ask what illness the employee has?
Ask for information you reasonably need to manage leave, safety and the employee’s ability to work. Often you need to know how long they may be away, what work they can do and whether adjustments would help, rather than their diagnosis. Handle any health information confidentially.
What if the employee has no paid sick leave left?
Talk about the available options, which may include annual leave by agreement, unpaid leave or any extra leave your business offers. Running out of paid sick leave does not mean the employee must work while unwell or that you can automatically end their employment.
Can I dismiss an employee who is often sick?
There is no automatic threshold. Where illness or injury means an employee may no longer be able to do their job, a dismissal for medical incapacity may eventually be possible. You need reliable, current information and a fair process, including a genuine look at support and alternatives. Get advice before taking this step.
Employer Direct helps small businesses handle difficult employee relations issues with clear, practical advice. If repeated sick leave is putting pressure on your team, we can help you decide what to ask, what support to consider and how to take the next step fairly. If you are considering discussing medical retirement, get in touch to discuss the best approach.
Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.
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