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Key lies about sick leave

Written By: - Date published: 6:00 am, July 21st, 2010 - 34 comments
Categories: national, workers' rights - Tags:

No Right Turn has a good post pointing out that John Key’s petty fascism on sick leave is already covered by the law. An employer can demand a worker provide a medical certificate after one day’s sick leave – so long as they have reasonable grounds for suspecting the sick leave is not genuine.

Here’s what the Holidays Act says:

68 Proof of sickness or injury
(1) An employer may require an employee to produce proof of sickness or injury for sick leave taken under section 65 if the sickness or injury that gave rise to the leave is for a period of 3 or more consecutive calendar days, whether or not the days would otherwise be working days for the employee.
(1A) Despite subsection (1), the employer may require proof of sickness or injury within 3 consecutive calendar days if the employer—
(a) has reasonable grounds to suspect that the sick leave being taken by the employee is not genuine because none of the grounds in section 65(1) are met; and
(b) informs the employee, as early as possible after forming the suspicion that the sick leave being taken is not genuine, that the proof is required; and
(c) agrees to meet the employee’s reasonable expenses in obtaining the proof.

So, when Key says the law needs to be changed so poor abused bosses can crack down on ‘the worker who calls in sick every second Monday’, he’s lying. The employer would already have the grounds to demand a medical certificate in that situation.

All this law change will do is remove the requirement for our employers to behave reasonably when we’re sick. The only effect of that, of course, will be to empower unreasonable employers.

Anyone else starting to see a pattern here?

Update: And in the Dom Post today an employment specialist points out the new law could lead to workplace bullying. The Nats facilitating bullying? Who would have thought.

34 comments on “Key lies about sick leave”

  1. tsmithfield 1

    But now of course the employer has to pay for it.

    Thinking about it, this could be great for employees. Usually when my wife goes to the doctor she has a list of questions she wants to ask (about herself, the kids etc) so she can maximise the value she gets for the fee. Now employees will be able to do the same at the boss’s expense.

    • IrishBill 1.1

      That’s ridiculous.

      • ghostwhowalksnz 1.1.1

        Thats right just get sicker so you can have a list?
        The getting the employer to pay, will almost never happen. These things are handled at the foreman/supervisor level so they will just say a flat no to ‘re imbursment’, unless its a unionised workforce

        • Pascal's bookie 1.1.1.1

          Nah g. The minister sez they expect the employer to pay up front for the doctor visit.

          How this is supposed to work, we were not told. She said it was practical and pragmatic though, so all good.

          • Lew 1.1.1.1.1

            Pretty straightforward. Employees who lack cash on hand or aren’t confident their employer would reimburse them promptly or in full can just give the doctor’s receptionist their boss’ business card and let them sort it out business-to-business. This is more or less what happens at present, though it’s not common. Doctors unwilling to accept such a circumstance are not the employee’s problem, and if they employer wants an employee to get a medical certificate, it’s on them to grease the wheels.

            L

  2. tsmithfield 2

    Why so? If the change was framed as “government requires employers to pay for employees health checks” the change might be seen in quite a different light.

    Also, now there is a practical test for “reasonable grounds”. That practical test is whether or not the boss thinks it is serious enough to part with some of their own cash. You pointed out yourself on a previous topic how murky the term “reasonable” can be. Under the current law, an employer trying to require a medical test on “reasonable grounds” and dismissing as a result of what he found could most likely end up in the employment court because the employee disputed the grounds for the test in the first place.

    • Juan Manuel Santos 2.1

      See, I’d rather my employer was required by the law to be reasonable than make it so that he just had to pay for me to see a doctor if he was determined to punish me for being sick.

      Believe it or not, there are bosses like that. The law shouldn’t be empowering them.

    • Lew 2.2

      Try to keep up, TS, I thought you worked in HR or something?

      The employer already has to reimburse “reasonable costs” (there’s that word again) incurred by getting a medical certificate if the employee has been off for less than three days.

      L

    • comedy 2.3

      Stupid and facile

    • felix 2.4

      TS you’re defending the current law you fool. Might as well pull a sickie, you’ll be getting your pay docked today if you keep this up.

      • tsmithfield 2.4.1

        Actually, Felix, I’m talking about the stupidity of including the “reasonable” aspect as per the current law, if you’ll teach yourself to read.

        Is it reasonable for an employer to require a medical check if an employee has been off work five Mondays in a row? Probably. How about five Mondays in the last three months? A little less clear.

        The employer thinks its reasonable so he demands a medical test. The employee thinks its unreasonable (because he doesn’t want to get found out perhaps) so declines on the grounds that the request is unreasonable. The employer starts deducting pay or dismisses. The employee gets pissed off and the case ends up in the employment court. Time and money wasted for everyone.

        At least with the change the requirement is very clear, and people don’t need to rush off to lawyers to define “reasonable”. Also, the worst downside is that employees get to go to the doctor more frequently, which has to be a good thing.

        • Lew 2.4.1.1

          TS, that’s ridiculous. This is the sort of thing which is done without hassle every single day by hundreds of employers already. There are only a handful of terms better-understood in law than “reasonable”. You’re jumping at shadows.

          L

          • tsmithfield 2.4.1.1.1

            Well, when the opposite phrase “unreasonable” was used in respect of employers not “unreasonably” refusing consent for union members to enter a work place, Irish considered that this phrase would make it incredibly difficult for union members to get access to workplaces. Here is our exchange below:

            tsmithfield 5.1.1
            20 July 2010 at 7:37 am
            Irish, I would agree with you if the “unreasonable’ part has no teeth for the unions to force compliance. However, assuming there is a reasonably straightforward process for the unions available to unions, then there will be a threshold of annoyance level for employers that makes it easier for them simply to comply with the request than tangle themselves up in processes that the would rather avoid.

            Reply
            IrishBill 5.1.1.1
            20 July 2010 at 7:44 am
            Nope. That’s not how it works now in fact unions have to go to court to get access to some employers’ sites under the current law. That takes time and resources that are already stretched. “Unreasonable’ and it’s myriad definitions will increase the number of times this happens, probably to the point it can’t be done.

            So which is it? Either terms like “reasonable” and “unreasonable” are incredibly easy to interpret and should cause no problems. Or else they are a minefield of problems waiting to trip up the unwary.

            • Lew 2.4.1.1.1.1

              The reality is that it’s different in different cases.

              Instead of repairing to hypotheticals on a blog, perhaps you could cite examples from your own employement or management experience where “reasonable” has been the source of a problem?

              L

  3. joe90 3

    Righto, an employer requires a medical certificate for a one day absence with the employer to pay the doctors fee but does the employer also refund the GMS or do they expect the taxpayer, via the GMS, to subsidise their business?.

    • Craig Glen Eden 3.1

      Also this is an invasion on the employees time to have to get out of their sick bed and go to the Doctors. While I totally accept that the employer should have a right to request a sick leave certificate for extended leave or if a pattern of one off’s is occurring they should have good reason for the request. Otherwise this is the employer determining what the employee can do in paid time outside of work. I guess it goes to show how important having a good work relationship is and sadly their will always be people on both sides who exploit their position/entitlement.

      Lastly when will Key stop lying its just constant now!

      • marsman 3.1.1

        Key lied to get himself into office and he’ll keep lying to stay in office,and probably after he’s been booted out . He’s a liar pure and simple.

  4. just saying 4

    I understand that if a third party pays for medical treatment, the payer becomes the doctor’s ‘client’ for that visit. I’m pretty sure this is the situation with insurance paying for visits, and that the Medical Council recognises the fact, in that patients may not complain about a doctor where an insurer pays the bill.
    I realise the insurer would likley have actual or assumed consent for the release of private info, but it’s possible an employer might have some entitlement to see the employees medical notes for the visit or even to contact the doctor for “further information”.
    Anyone know the legal position?

    • loota 4.1

      As far as I know, whoever pays the bill has no effect on the duty of care the healthcare practitioner must show that patient, nor the responsibilities that healthcare practitioner must meet as regards to HDC standards and privacy law.

      As an aside, the moment a patient signs their ACC claim they allow all the clinical information gathered by their health practitioner to be shared with ACC, but that is compliant with all of the above as the patient gives explicit authority for that to happen.

      I suppose it is possible that another insurer might require patients to sign paperwork saying that they agree to share all medical information gathered with their employer – but it would be a bad idea to sign that IMO as most employers aren’t set up to manage and compartmentalise that kind of sensitive information.

      • Lew 4.1.1

        Enforcing that in a uniform fashion would likely be a breach of the Health Information Code of Practice. This isn’t exactly law (it’s a policy guide), but failure to adhere to it is grounds for a complaint to the Privacy Commissioner and/or the Human Rights Review Tribunal.

        L

      • Craig Glen Eden 4.1.2

        Another point, I believe that its a breach of the human rights law for anyone to be forced to see a health practitioner against their free will no matter who’s paying the bill, which when you start to think about it is a pretty fundamental right. So this could result in some interesting appeals. So the logical thing to do is for any employer ( of which I am ) having to accept that the employee can go to ever they decide to see not who I would like them to see.

        Any contract or policy that undermines this principle would probably lose in a court of law and rightfully so!

        • Lew 4.1.2.1

          Yes. The right to refuse medical attention is fundamental. But exercising that right doesn’t entitle you to be paid as if you’re sick.

          L

  5. Julie 5

    It’s incredibly depressing that neither the PM nor the Minister of Labour appear to understand really basic bits of the law they now want to quite significantly amend. Particularly when they don’t understand the stuff they’ve already changed themselves (by which I mean the 90 day stuff covered in another post). I can haz new election?

    • Draco T Bastard 5.1

      It may be sad and depressing but not unexpected, this is National after all and they work entirely on belief and blind faith rather than fact.

    • The Voice of Reason 5.2

      I’d go further, Julie. I think Williamson meant to change the sick day law to mean the employee pays, not the employer. Otherwise, what’s the point of this feeble change? I think she simply mispoke, and is now to embarrassed to admit the cock up.

      On another point that seems to have been missed. The employer doesn’t just pay for the doctors appointment, but reasonable expenses related to the visit. So if you are too sick to drive, the boss also has to pay for the taxi fare. I can’t see too many employers enforcing this provision if workers say “cool, boss. It’s gonna cost you $30 for the appointment and fifty for the cab. You still want me to go?”

  6. tc 6

    “It’s incredibly depressing that neither the PM nor the Minister of Labour appear to understand really basic bits of the law they now want to quite significantly amend.”

    Extend this to education/justice/environment etc and bingo it’s a full house….style over substance and an MSM heeling obediently at their feet……easier than any dealing room ever was for Sideshow.

  7. kriswgtn 7

    and whats the bet the 5 days sick leave get tossed out soon by these fascists

  8. bbfloyd 8

    i wonder what Mcjonno’s mother would think of her son implementing the same kind of policies that forced her to run away from her homeland.

  9. Helen Kelly 9

    pity the worker who gets sick or has a sick child in the first 90 days! Maybe they will just go to work sick or leave the child home alone.

  10. RedLogix 10

    I’ve been talking with a lot of folk the last few days about this. Invariably when the reality of the proposed change is explained to them, they are appalled at the consequences.

    Because it is virtually impossible to obtain a medical certificate for just one or two days of flu, cold, tummy bug, etc (and doctors have clearly stated they do NOT want their waiting rooms full of this sort of thing)… then almost all people who do take a few days sick leave are NOT going to be able to obtain proof.

    But the proposed change gives employers the unconditioned right to demand proof the leave is genuine, proof that mostly cannot be provided. Which of course gives the employer unilateral rights to demand the leave be converted to annual leave, docked pay, or of course creating ready made grounds for an unfair dismissal. Without exaggeration, it is a petty fascists charter.

    (And in practise many, many folk will simply turn up to work with the illness, underperforming and spreading the illness…rather than face the risk of being hassled over it for a certificate.)

    • loota 10.1

      (And in practise many, many folk will simply turn up to work with the illness, underperforming and spreading the illness rather than face the risk of being hassled over it for a certificate.)

      Which says something about how boneheaded the ‘pro-business’ supporters of this bill are.

  11. aj 11

    Proof? bring the boss a snotty hankie, a bottle of diarrhea or vomit. If that ain’t proof get them to dna it.

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