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COVID-19 has seen health and contagious illnesses take centre stage for many employers. No employer wants their workplace to be somewhere where illnesses spread rapidly, or where employees are struck down with illnesses. For that reason, it is important to consider your options as an employer and whether you can force an employee to leave work if they are sick. This article will set out:

Your Employee’s Sick Leave Entitlement

Employees are entitled to five sick days per year. This is available after serving six months of continuous employment with the same employer or working consistently each week for the same employer for six months. Sick leave helps employees through illnesses and is an important tool to manage illnesses as an employer.

Ideally, if they are sick, your employees will use their sick leave entitlement to stay home and get a rest from work. If they have used their sick leave entitlement up, there may be an arrangement you can make with your employee. This could include ‘advancing’ them special sick leave so that they can continue to get paid as they recover.

Can You Force Employees to Take Sick Leave?

While you can encourage your employees to take sick leave if they are ill, you cannot direct or force them to do so. Sick leave is a statutory entitlement and employees must agree that they would like to take it.

It is helpful to have a robust sick leave policy and processes in place to support workers who are home on sick leave. Some employees may not wish to take sick leave because they will perceive that doing so will mean their active work is uncompleted, or clients are let down.

Putting processes in place to pick up their work temporarily will help some employees to feel comfortable to take sick leave.

What Should You Do If Employees Refuse to Take Sick Leave?

Even if you encourage them to do so, some employees may refuse to take sick leave. As an employer, you have a few options in this situation. The first is to ask the employee to work from home, and assist them in doing so.

For example, by allowing them to take their office computer home.

If they are working from home, they may not be resting as they would be on sick leave, but they are not passing any illnesses to other people in the office.

Your other alternatives include offering the employee special paid leave, particularly if there is a real risk of contagion to other staff.

In particularly difficult situations, you can also suspend the employee. If you do this, you need to follow a fair process and offer the employee the opportunity to give feedback on whether they should be suspended.

This should be a last resort for most situations with sick employees.

What Are Your Obligations if an Employee Is Sick?

You have obligations to your sick employee as well as obligations to the rest of your employees in the workplace. Exposing other employees to a contagious employee may be a breach of your health and safety responsibilities. You have an obligation to take reasonable steps and precautions to keep the workplace safe for other workers.

However, you also cannot breach your obligations to your sick employee. These obligations, including the need for good faith and the employee’s right to their entitlements, is why you cannot easily force them to stay home if they would otherwise work in the office. 

Key Takeaways

You generally cannot force employees to leave work if they are sick in New Zealand. Instead, you should encourage them to take sick leave, and put the right processes in place to support them to do so. You can also ask them to work from home. They may not be resting and recuperating if they do so, but this minimises the chance of passing on viral illnesses to other staff. If the employee refuses in all cases to leave the office, you can go through a process to suspend the staff member. However, you still owe them obligations as an employer just as you do the rest of your staff.

If you want to know more about managing employees who are too sick to work, or who do not want to take sick leave, contact LegalVision’s New Zealand employment lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Do you have to pay staff who are home on sick leave?

Yes, you must pay staff their full pay if they are at home on sick leave (or working from home).

Can employees be forced to take sick leave?

No, employees must agree to take sick leave as it is a statutory entitlement. However, you can and should encourage ill employees to take sick leave and support them when they do so.

What happens if an employee has been tested for Covid, and is waiting for results?

You should encourage the employee to stay home while they are waiting for the results of their test, potentially on special paid leave if they do not have any sick leave remaining. As there is a chance the employee will be found to have Covid-19, it is vital you do not risk the chance of other employees catching the virus off your ill employee.

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