Coughs and sneezes spread diseases – managing sick leave during the cold and flu season

It’s that time again – cold and flu season. In this blog, we explore some key issues around managing sick leave during this tricky time of the year.


Sick leave

Sick leave as a paid entitlement has not always existed in Australia. It was in 1922 that the first paid sick leave entitlement appeared in an industrial instrument known as the Engineers Award, which stated that “No employee shall be entitled to payment for non-attendance on the ground of personal ill-health for more than six days in each year.”


The entitlement to paid sick leave grew from there and is now an accepted community standard that is legislated in the Fair Work Act 2009 (Cth) (FW Act).


The current statutory entitlement to paid sick leave, now called personal/carers leave under the FW Act, is 10 days per year for a full-time employee, accrued progressively throughout the year. The entitlement:

  • accrues from year to year;
  • is not payable on termination of employment.


Over the decades, it is not only the amount of sick leave that has changed but also the way that sick leave is managed. For example, the 1922 Engineers Award did not contain the notification or evidence requirements now present in the FW Act that relate to the taking of sick leave.


These contemporary provisions allow employers to manage sick leave in an appropriate manner but are often not well understood. For example, many employers fail to appreciate that, under s 107 of the FW Act, in order for an employee to access their sick leave entitlement, they must:

  • give notice of their sick leave absence as a soon as possible and advise the employer of the expected duration of their absence; and
  • if required by the employer, provide reasonable evidence that their taking of sick leave was for an appropriate purpose (like actually being sick).


Many employers also fail to appreciate that having sick employees at work is a work health and safety risk in relation to which an employer is entitled to issue specific directions – such as directing a sick employee to go home.


For employers, the sick leave provisions of the FW Act and the authority to issue directions are excellent ways to manage both “sickies” and “workplace warriors.”


Sickies

The “sickie” takers abuse their sick leave entitlement to take time off work for leisure. In particular, they take advantage of the cold and flu season to disguise the misuse of their sick leave entitlements by taking time off work when they are not actually ill.


The sickie taker is notorious for tacking sick days on to the end of weekends or public holidays for a luxurious long weekend.


Aside from the obvious dishonesty, a sickie taker can be bad news for a range of reasons, including:

  • A negative leave balance – sickie takers can use up their paid sick leave entitlement and end up having to take unpaid leave on occasions when they are actually sick. This can result in financial distress for the employee and that’s not in anyone’s best interests;
  • Morale takes a dive – sickie takers are not viewed favourably by hard working colleagues who feel the injustice of having to cover for the sickie taker who is out for a picnic;
  • Productivity is reduced – obviously, work that could be getting done by a healthy employee is not getting done when that employee takes a sickie.


Workplace warriors

A “workplace warrior” refuses to take sick leave when they are unwell.


Workplace warriors commit the crime of presenteeism – meaning they are present at work when they should be at home resting. They adopt the “soldier on” mentality that, despite good intentions, can be very damaging to a workplace. The effects of presenteeism and workplace warriors can include that:

  • Everyone else gets sick too – workplace warriors can spread their illness to other employees by refusing to stay away from the workplace;
  • Morale takes a dive - the conduct of workplace warriors can imply that those who do take sick leave are weak or uncommitted and these aspersions can bring down the team’s energy;
  • Productivity is reduced - the quality of the work produced by workplace warriors is often sub-par because they are not well, resulting in work having to be re-done or taking longer than usual.

Strategies for employers

  • Set expectations – develop a policy (or review your existing policy) on sick leave setting out the procedures for taking sick leave and the employer’s expectations. This should include how to apply for sick leave and the circumstances when evidence, like a doctor’s certificate, may be required.

To deter sickie takers, the policy might include that evidence can be requested on any occasion but will always be required when sick days are claimed directly before or after weekends or public holidays.


To combat workplace warriors, the policy might state that, in the interests of workplace health and safety, an employer may require an employee to leave work and take sick leave if the employer reasonably believes the employee poses a risk to the health of others.

  • Communicate expectations – send a reminder to employees about the sick leave policy before cold and flu season hits and meet with employees to discuss their obligations and the expectations of the business when it comes to the taking of sick leave.


Encourage employees to act responsibly by looking after themselves and taking a proactive approach to building up their immune system through rest, medicine/herbs/vitamins, healthy eating and exercise.

  • Send workplace warriors home – employers have a responsibility to provide a healthy and safe workplace for their employees and workplace warriors can make the workplace unhealthy. Where an employer holds a reasonable belief that an employee’s illness poses a risk to the health of other employees (like a contagious cold or flu), the employer will be within their rights to send the employee home on the basis that they are unfit to work safely and without risk to the health of others in the workplace.

  • Understand and utilise the law to follow through – the FW Act sets out the requirements that an employee must comply with in order to access their sick leave entitlement. Similarly, an employer has the authority to direct an employee in the conduct of their work, including to leave the workplace if they pose a health and safety risk.


Employers should utilise their position in the law to ensure that they follow through with disciplinary consequences for persistent workplace warriors or sickie takers.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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