When can HR legally ask for a sick note?

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New Zealand may be a nation of guilt-ridden narks – after all, one third of Kiwis have dobbed themselves in after pulling a sickie – but there will always be some workers who are frequently “ill” and annoyingly tight-lipped.

So what can HR do about it? HRM asked leading employment lawyer Carl Blake just when employers can ask for a sick note and exactly what it is they can ask for.

“First of all, you’ve got the baseline – which is the Holidays Act – then you’ve got the employment agreement which can supplement that,” he begins. “An employment agreement can’t erode the rights under the Holidays Act – it can only add to them and further clarify.”

Blake explains that, under Section 68 of the Holiday’s Act, an employer can ask for a sick note if the sickness or injury is for a period of three or more consecutive calendar days – regardless of whether or not these days would be working days.

However, there is an exception to the rule.

“The act also says that an employer may require proof of sickness or injury within three consecutive calendar days but only if the employer informs the employee as soon as possible that proof is required and also agrees to pay for it,” says Blake, of Simpson Grierson.

“There used to be a provision which said that if there was some doubt or if there was a concern from the employer about the genuineness of the sick leave they could ask earlier but now it’s much simpler,” he says.

Blake also told HRM that an employment agreement commonly adds a provision which says once an employee uses up their statutory sick leave, the employer can ask for a doctor’s note at any time.

The Auckland-based employment lawyer also revealed that there is certain information employers can’t ask for.

“Essentially, it’s the clinical information like diagnosis and prognosis that isn’t able to be asked for but certainly ability to perform duties safely and effectively, return to work date and any special accommodation or reasonable steps that the employer must take to have someone back at work are legitimate questions to ask,” he told HRM.

“There are good faith obligations however,” he added. “There is a balance to be struck between an employee’s personal private clinical information and the details of when or how long they’ll be away and what the return to work plan looks like.”

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