Employee taking too many sick days? Here’s how to handle it

“I’ve got an employee who’s always sick – what can I do?” Unsurprisingly, this is a common question asked by many employers, and while it can be frustrating to feel like one of your employees is never at work, every situation is different. As an employer, you need to be aware of certain risks and challenges that arise when dealing with excessive sick leave – these can’t be overlooked or misunderstood.

Each month, we receive hundreds of calls via our HR Advice Line just about leave entitlements; there’s not much our workplace relations experts haven’t seen when it comes to sick leave. In this article, we outline some of the most common issues and questions our clients ask when dealing with extended periods of sick leave.

The what, why, and when of sick leave

Sick leave is an entitlement enshrined in the National Employment Standards (NES) and all employees – except casuals – are entitled to paid sick leave. Like annual leave, personal or carer’s leave accrues based on an employee’s ordinary hours of work and begins accruing from the first day of employment.

Proof please: what evidence requirements exist for sick leave?

When an employee needs to take personal leave, they must notify their employer of their absence and provide reasonable evidence when requested to show that it’s been taken for a permitted reason.

Reasonable evidence includes documents such as medical certificates stating that the employee is unfit for work or a statutory declaration. When this is requested, it must be provided as soon as is practicable.

In the instance that an employee requires an extended period of absence from the workplace due to personal injury or illness, this can create uncertainty and other challenges for a business. As an employer, you may find yourself asking questions like:

• Can I legally hire someone to replace the missing employee?
• Will the employee be able to perform the same role if or when they return to work?
• Is the employee even going to come back to work?
• Can the business consider termination?

As a business, you must be mindful of certain employee protections that restrict how you can respond in these situations.

What are the risks and restrictions employers face?

Section 352 of the Fair Work Act 2009 (FW Act) states it’s unlawful to terminate an employee because the employee is temporarily absent from work due to illness or injury.

However, exceptions to this restriction exist and apply when the absence extends for:

• More than three consecutive months; or
• A total of not less than three months over a 12-month period; and
• the employee is not on paid personal leave for the duration of the absence.

This means that after a business has considered other risks, such as unfair dismissal, general protections and discrimination risks, the business can then take steps to initiate a termination process.

However, as prefaced, employers must not rush to move to terminate an employee who has been absent from work for an excess period of three months on unpaid leave.   An employee who’s dismissed on a period of absence due to illness or injury will still have access to other workplace claims such as unfair dismissal (depending on their length of service), general protections claims, as well as a discrimination claim under the relevant Federal or State anti-discrimination laws.

We’ve covered the risks and restrictions, but what about the rights of employers?

As an employer, you must properly – and compliantly – navigate the protections afforded to employees, but you still have the right to request reasonable evidence of injury or illness and ensure employees comply with reasonable directions during their absence.

When considering termination because of an extended absence, employers must ensure proper and compliant processes are followed including:

• A medical capacity review to determine whether the employee can perform the inherent requirements of the role; and
• Taking steps to determine whether reasonable adjustments can be made to facilitate the employee’s return to work.

Failure to do so will open up the door for the employee to pursue a discrimination claim against the business.

Managing sick leave can be tricky for employers to navigate and getting it wrong can cost your business more than just money. We know that business owners wear many hats every day and mistakes aren’t intentional, but they can and do happen – this is where Citation HR can help. We’ll complete a thorough HR Compliance Audit for your business and help identify any risks before they become problems – and the best part – this service is included in our monthly, cost-effective subscription that’s designed to protect your business from costly risks. Want to learn more about how Citation HR can help protect your business, contact our friendly team today.

If any of this information has raised questions about how you should manage sick leave or extended absences, please reach out to friendly workplace relations experts via our 24/7 HR Advice Line.

About our author

Zaynab Aly is a Senior Workplace Relations Consultant at Citation Group. She has a particular interest in the retail industry and regularly provides advice on workplace matters to find solutions for clients.