Manager guide to excess sick leave

MyHR's suggested approach on how to manage excessive sick leave.

READ: What is sick leave?
READ: Who is entitled to sick leave?
READ: What is excessive sick leave?
READ: How can excess sick leave be managed?
READ: The employee is cleared to be at work, but is still unwell / injured, what can I do?
READ: How can I communicate this to my team?
READ: How can I request support from MyHR?
READ: Can I discipline for excess sick leave?
READ: Further questions?

What is sick leave? 

Paid leave to be taken when the employee or a person dependent on the employee is sick or injured. This includes both physical and mental illnesses.

Note, that employers can provide benefits over and beyond legislated entitlements. This article will namely present information based on minimum legislated entitlements.

Who is entitled to sick leave?

Permanent and fixed term employees, who work full time or part-time after 6 months continuous employment.

Casual employees who have worked on average of at least 10 hours per week, and at least 1 hour per week, or 40 hours per month for the previous 6 months.
All employees are then entitled to sick leave, every 12 months thereafter. Sick leave can be accumulated up to 20 days.

What is excessive sick leave?

When an employee is over the legislated or contractual sick leave entitlement and takes sick leave without pay, or is approved to take annual leave for periods of being sick or injured.

At times employers struggle with employees who take sick leave in excess of their sick leave entitlement when employees or their dependents are genuinely sick or injured, or in some cases employers may be suspicious that it’s not genuine, and is a mechanism to have time off at short notice.

Taking sick leave in excess entitlements, either through blocks of time, or sporadically through the year, can cause significant strain on an employers resources to continue effective business operations

How can excess sick leave be managed?

MyHR’s recommended approach:

1. When an employee has used8 of 10 days of their sick leave entitlement within a 12 month period, we would recommend informally flagging this to them and outline:
   1. When their next sick leave anniversary is;
   2. What will occur if the employee is unwell/injured: and runs out of sick leave.
   3. Additional options the employer is willing to extend – i.e. up to 5 days annual leave, can be reserved and used as sick leave.
   4. If the leave has been used in short succession, ask if there’s anything the company needs to be aware of in terms of the employee’s health that could impact work.
   5. Medical certificates may be requested for any period of sick leave, and if out of sick leave entitlement this would be at the employee’s cost.
2. At 15 days it is time to flag to use of sick leave being monitored and further may be considered excessive. At this stage be sure to ask what’s going on, if there’s anything the company needs to be aware of etc. An informal discussion is again fine and managing the outcome will depend on what is said, for example:
   1. No underlying health concerns, just various injuries, illnesses etc., nothing is connected, then could just outline general expectations for keeping fit and healthy to ensure able to attend work. Could also outline the impact to the business.
   2. If there are health issues identified either for the employee personally, or the employee’s partner for example, then a dialogue could be opened for how to assist in managing / what support the employee requires.
3. If use of sick leave continues, then you could consider an excess sick leave letter to start to formally address your concerns. As a rule of thumb, you could do this at sick leave usage at about18 days within a 12 month period. If concerns are held based on the employee’s response, you could instruct them to see a medical practitioner and take their job description, or a document that clearly outlines their duties and responsibilities, hours and days of work, and sick leave history and reasons to a medical consultant and ask them for their view as to whether the employee is fit for their role. This would be at the Employer’s cost.
   1. If the employee is given the all-clear to be at work to do the role, then continue.
   2. If the employee is not given the all-clear, then look at ways to accommodate what the medical practitioner has said. If unable to accommodate, then could start a medical consultation regarding possible termination on medical grounds.
4. If the employee is given the all-clear to return to work, but absences continue to stack up, and reach the25 day threshold in 12 months, then you could consider a medical termination consultation process.

Where employees, or their dependents, have underlying health issues we suggest allowing a bit more leniency in these situations.

A few things to note:

1. If sick leave entitlement increases (legislated or company driven), this will need to be revisited.
2. It wouldn’t be fair or reasonable to follow any of these processes, i.e. excess sick leave / medical consultation if the employee has sick leave entitlement available.
3. The above figures have kept in mind that legislation considers it fair / reasonable for employees to accumulate 20 days sick leave, also that MyHR recommends having a medical termination clause with a threshold of 5 weeks / 25 days.
4. It is difficult to get a medical termination over the line when it's 25 accumulated days off for multiple reasons, so can be risky to proceed with this option.

The employee is cleared to be at work, but continuing to take time off due to being unwell / injured. What can I do?

1. Offer additional hours to staff to cover the absence.
2. Implementing a casual workforce to help with last minute cover.
3. Look at the average hours worked over the past 12 months / or the pattern of time off due to being unwell, and consult with the employee to reduce hours.
4. If meet the threshold for medical termination – could undertake this process – however it could hold some risk.

How can I communicate this to my team? 

If this is a shift in approach, we’d recommend having a team meeting to discuss. Usually, a good approach is to do a reset coming into winter months with cold/flu season etc. Alternatively, can just be managed individually as required.

MyHR can support with communications.

How can I request support from MyHR?

Raise an additional support request - instructions on how to do this can be found here and provide full information as to what you require.

Can I discipline for excess sick leave?

As being unwell or injured is outside of the employee’s control (unless you hold evidence that proves otherwise) we do not recommend disciplining an employee for the amount of leave they’ve taken due to being unwell. This is based on that it’s not what a fair or reasonable employer would do (part of an employer’s good faith obligations towards the employee).

You could discipline for things related to being unwell or injured and having sick leave, such as:

1. Failing to notify in accordance with instructions / company policy.
2. Failing to provide a medical certificate when requested.
3. Time off on sick leave, is not genuine.

Have further questions?

Contact our Advisory Team to discuss further 0800 69 47 69.