Every employer has an obligation to be fair and reasonable when dealing with all employees but what does this mean when dealing with long term absences? Here are some key rules:
The employee first has to receive his or her paid sick leave entitlement under the employment agreement, which can’t be less than the minimum entitlements set out in the Holidays Act. If the employee has been sick for a prolonged period, the employer can usually require that the employee provides medical certificates for this absence, at their own cost. However some employment agreements contain benefits that are more generous to employees than the Holidays Act, so always check the employment agreement first.
The employer needs to try to open up a good line of communication with the employee. The employee should be asked to keep the business regularly up to date, and to provide enough details of their sickness/injury so the employer can understand the situation and likely return date.
If the employee is on ACC, the employer will also need to liaise with the ACC case manager allocated the matter.
If the sick leave is exhausted and the absence is putting a strain on the business, then the employer must still try to cope and adjust its operations to the extent reasonably possible.
- Eventually though, an employer may come to the point where it considers it cannot keep the job open any longer. When that point is reached will vary from case to case and depends on a whole range of factors. There is no “one size fits all” here. However before dismissal for medical incapacity will be lawful, the employer should have considered factors such as the length of the absence; the effect it has been having on the business; the importance of the role; the ability to find temporary coverage; the employee’s prospects for recovery and whether the injury or illness was work related. Once all of these issues have been considered and discussed with the employee, the employer may be in a position to issue a deadline that if the employee does not return by a set date, then the employment will need to be terminated. At that point, you can say “enough is enough.”
The key is to keep the lines of communication with your employee open, so that all decisions are made after consultation and with all information available.