How to handle staff taking extended sick leave

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The current flu season has been one of the worst the country has seen since 2019. Not only is the community catching the flu, we are also running the risk of contracting COVID-19 as well. This means employees that once accessed their sick leave rarely are now, uncharacteristically, having to take extended leave or leave on a regular basis. Over the last few weeks the Workplace Relations Team have had an influx of queries about employees taking extended sick leave, practices being left severely understaffed and questions about what they can do. Therefore, we thought that we’d put together a basic guidance reference, but please contact us with any specific questions you have. 

As part of the National Employment Standards (NES), full-time and part-time employees are entitled to paid personal (sick) and carer's leave. This entitlement allows an employee to take a minimum of 10 days of paid personal/carer's leave a year. This entitlement accrues progressively during the year according to the employee’s ordinary hours of work and accumulates from year to year (section 96 of the Fair Work Act 2009 and NES). This payment is paid at the employee’s base rate of pay.

If your employees are applying for this leave, under section 107 of the Fair Work Act and NES, it states they must provide notice and evidence to their employer, if required. As an employer, you should request evidence at the time your staff notifies you of their intent to take leave. Practices should already have an internal policy in place around taking sick/personal leave. If you don’t, this is something that we highly recommend you implement. These requirements can be flexible to each practice as there is no legislation around what is required. Some employers may only require their staff to provide evidence when they need to take two or more consecutive days off work. However, the employer also has a right to request evidence for a single day of sick leave. It is important to note that the legislation does not state that evidence needs to be a medical certificate. Rather, it states that it must satisfy a reasonable person. This means that a statutory declaration could also be considered as sufficient evidence for particular matters, or other forms of evidence. If you’re unsure about whether a particular form of evidence provided by a staff member is sufficient, please give us a call. 

When staff are taking excessive amounts of sick leave, and the practice is unable to run efficiently due to being understaffed, it can be difficult to manage. We often get asked about when an employee can be terminated due to excessive time off work, and this is something we would recommend you always seek advice about prior to taking any action. These matters can become complicated, and if they aren’t handled with caution, there could be risks of expensive claims such as a General Protections claim. 

To reduce future staff absenteeism, you could consider a policy for extended sick leave. This should set out the expectations and procedures for employees, owners and management to follow in case of absence due to sickness. This policy should consider the following.

• Outline why extended sick leave may be taken.
• What reasonable evidence should be provided.
• How much sick leave the employee is entitled to.
• Can they use holiday or annual leave entitlements if they run out of paid sick leave?
• What is the process for returning to work?
  • this could include the need to wear personal protective equipment (PPE) to reduce the risk of spreading infection to other staff and patients
  • if the employee was ill with COVID, it may be reasonable for the practice to allow the staff member to return once they have presented a negative test and are without symptoms.

We understand this is a difficult time for our members and we want to ensure you feel supported. Please reach out should you need any advice about your specific circumstances. 

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