With winter just around the corner, there will be the usual increase of illness occurring among staff and NZSTA thought it would be timely to provide some guidance around this.
As with all matters around employment, it is important that an employer remembers that any action they take must be fair, reasonable and proportionate to the circumstances.They must also ensure they always follow a proper legal process.
Each of the collective agreements (CA)s that apply to schools have clauses in relation to sick leave and it is important to check the version that applies to the employee requesting leave. You will find copies of the CAs on the Ministry of Education website.
NZ legislation states that payment for sick leave is only made when it is a day that the employee would normally have worked if they were not sick. However, school employment has some complex aspects when it comes to sick leave depending on whether employees are teachers, support staff, full time, part time, annualised etc. For example, teachers and principals are employed for 365 days, while support staff may be employed for between 40 or 52 weeks a year. Therefore, the way leave is deducted and counted can be different than other sectors and varies dependent on the category of employee and CA. It is recommended employers and administrators consult Novopay’s Counting Leave Days before submitting sick leave deductions in order to understand the requirements. When submitting a leave form to Novopay they will calculate pay and deductions from an employee’s balance based on the agreement provisions, days worked and timing of leave.
If an employee has run out of sick leave and, depending on the circumstances an employee may be able to take paid or unpaid leave at the discretion of the employer. Discretionary leave may need to be approved by the board depending on delegations and policy. An employee who is employed for 52 weeks a year may be able to take annual leave if out of sick leave. However, it is important to ensure there is sufficient annual leave that provides for the employee to have rest and recreation during the year as this is the intent behind having annual leave. When sick leave is for a spouse or dependent there may also be provisions in the CA which apply.
An employee who needs to take sick leave must notify the employer as early as possible before they are due to start work on the day they are sick or if that is not practicable, as early as possible after that time. It would be a good idea to have clear procedures outlining the process you would like employees to use when advising they are sick, e.g. phone, text and who they are to contact. There should be some flexibility depending on the circumstances surrounding the illness.
Discretion when requesting a medical certificate
Each collective agreement outlines the circumstances around requesting a medical certificate. This varies between agreements, for example, some requests can be made for periods of sick leave ‘in excess of 5 days’ while others state ‘after 2 days’. The language varies in the different CAs with some stating that if a certificate is requested it “must, may or shall be produced”. Where the CA states that a certificate shall be produced there is no leeway as it is a requirement. If the CA uses terminology such as ‘may’ then it is at the employer's discretion.
When requesting a certificate it is really important to be fair and equitable among all staff. If for example, you request a certificate from one employee who is absent for the flu but did not request it from another staff member under the same circumstances and there is no reason to believe the illness is not genuine then it may not be a reasonable request under the circumstances.
If there is a school policy that outlines what is required then this should be consistently applied to all staff (as long as it fits with the terms in the CA). It is important to keep in mind the cost of visiting a doctor, ability to get an appointment and the financial impact on the staff member. It may be worth reviewing any policy you have around this.
A medical certificate may be requested earlier than what is stated in the collective agreement if you believe there are reasonable grounds to believe the sick leave is not genuine, for example, you observed the staff member going for a run when they said they had injured their leg. If you request a certificate earlier than what is stated in the CA the school would be required to cover the costs of a doctors visit.
What do you need on a medical certificate?
The Medical Council of NZ states what GPs are required to include on medical certificates. A summary of this is:
- meet relevant legislation eg Privacy Act 1993, be written legibly, and in a way that it is understandable by a non-medical person
- information should be accurate and based on clinical observation, with patient comment clearly distinguished from clinical observation
- provide the necessary information required by the school and consented to by the patient. It might include information on activities the staff member can or cannot do and any workplace factors that have contributed to the illness or injury.
clearly identify the examination date and the period for leave or limitations on work (if any). Retrospective certificates should be clearly identified as such.
Medical clearance and return to work
If a staff member has been on sick leave for a significant period of time you may want to request a clearance from their doctor stating they are well enough before they return to work. This is a way you can ensure you are supporting staff health and wellbeing and they are not returning to work before they are well enough to do so. This can also act as a protection for the school under the Health and Safety at Work Act 2015. You have the option of a graduated return to work but this should be by mutual agreement and in line with the day to day needs of the school. If a graduated return to work would unduly affect students then this may not be the most practical solution. If the employee has been on work related ACC, a return to work plan could be worked out with them and ACC. If this is a non work related ACC illness/injury, then we recommend the school seek advice from NZSTA on considering and setting up a return to work plan.
It is important that any discussions around sick leave take into account that an employee is generally feeling vulnerable at this time whether the reason for this is physical or mental wellbeing. If you are concerned about how to manage the situation or need general advice on sick leave please contact NZSTA for advice.
Call 0800 782 435 or email firstname.lastname@example.org.