Winter is coming – along with sick leave and associated complications! 


With the colder months upon us, sickness and associated impacts on workplaces and employers are inevitable. Employers and employees need to be aware of minimum entitlements, but also each other’s expectations around other benefits and options that workplaces may to assist in managing sick leave and health-related absences.

Sick Leave

Under the Holidays Act 2003, employees are entitled to ten days’ sick leave after six months’ continuous employment (provided they meet the relevant hours per week/month thresholds).   Sick leave can be taken when the employee, their spouse or partner, or a dependant is sick or injured.

Employers can ask employees to produce proof of sickness or injury at an employee’s own cost if they have been sick or injured for three or more consecutive days (even if they are not working days). Employers can also ask for proof of illness or injury for illness/injury of less than three days, provided the employer covers the reasonable costs and lets the employee know as early as possible that the proof is needed.  Medical proof can be required in relation to an employee being sick, or to prove that that their spouse/partner or dependant is sick.  

Other options

Many employers have introduced additional options for the workplace that can come in handy when an employee is not well enough to be at work and risk spreading the illness but may feel up to doing a usual day of work from home, or at least be available to manage any urgent matters.

The most obvious option is the ability to work from home or work remotely. Note – they are not the same thing.   Working from home is just that.  Working remotely could be from another region, building, café, country – the options are endless.  Working remotely works for some employers, but for others, the idea of employees taking devices and confidential information out into the world is not palatable. 

When it comes to these situations, the key is ensuring everyone is on the same page in terms of expectations.  If someone is working remotely, do they need to be online during all business hours (as if they were at the workplace)?  Or, is there additional flexibility?  If they are actually sick, has the employer made clear that working remotely should not be the default, and sometimes it is best for everyone if the employee simply takes a day or so to focus on getting better.  What if there are sick children, parents, housemates, pets etc to distract them – is that a problem, or completely understandable and no issue?

Each employer (and employee) will have a different view on these matters and putting in some thought and setting expectations (generally in a policy) is sensible.

There are other benefits/options that could also be relevant, for example:

  • Increasing numbers of employers are introducing unlimited leave – but will this relate to all leave, or just annual leave? If all leave, how will that play into performance management if performance suffers? What if one employee is abusing it and leaving everyone else managing their workload so they can’t take any leave?  What if an employer needs to consider medical incapacity?
  • Partial working (for example the same days but less hours, or reduced days) is also something that often occurs accidentally – and that may well be fine. But if someone is not able to perform their usual hours temporarily or for a longer period, how will that work for the team, delegation of duties, handover of tasks, pay, etc?
  • There are rare examples such as subsidising childcare/care workers to assist with household care duties (often while the employee is at home since those workers may not know their families), automatically paying for doctor visits (sometimes without the need to get medical certificates), the options really are endless, and some employers are very creative!

Again, it is invariably sensible to have a policy in place to assist with setting expectations.  This does not need to be (and in our view ideally is never) a long, prescriptive policy that no one actually reads.  It can be high level and simple, and leave room to be managed flexibly, but still set down the basics. 

Dealing with Absenteeism

Sick leave, and sometimes the increasingly flexible workplace options for managing illness, can also see new challenges for employers.  Some employees may wish to remain away from the workplace for longer than needed (when there are no automatic work from home options).  Others will take more sick leave, either in large chunks, or regularly but short bursts.  Whatever the pattern, prolonged or repeated absenteeism (genuine and when the absences are questionable) can be challenging and costly for an employer, including in terms of productivity, client service, wider morale/impact on other staff, pressure on managers, and significant cost without return if unlimited paid leave measures are in place.   

Along with having clear expectations in place that apply to the workplace as a whole, employers will need to tread carefully if they wish to look into/manage attendance/absenteeism issues.  Setting personalised expectations/raising concerns in an informal setting may be a good place to start, but from there, if issues continue, an employer will need to carefully tailor any process to follow – as these issues can result in medical incapacity, performance management, and even conduct -related processes and outcomes – but there is no one-size-fits-all approach available. 

Sometimes starting a process will lead to the opposite behaviour occurring, for example an employee being scared to take genuine leave.  Again, a tailored process that reflects some of these types of risks and potential reactions/outcomes can assist with pre-empting issues, or managing them if they arise.


For more information

If you or your organisation needs advice, please do not hesitate to reach out.  For more information, please contact 04 472 0020 or one of our employment law experts.

  • Tess von Dadelszen | 04 495 8920 |
  • Sam McGuire |
  • Olivia Smith |

See more of our employment law articles here.


Managing sick leave - Employers advice