Can My Employer Refuse To Grant Me Sick Leave?

If you’re an employee in New Zealand and you’re wondering whether your employer can say no to your request for sick leave, or whether you can be disciplined for taking it,  you’ve come to the right place. This blog breaks things down in plain English: what you’re entitled to, what your employer can (and can’t) do, and a bunch of common questions to help you feel confident about your rights.

What sick leave are you legally entitled to?

Under the Holidays Act 2003, beginning 24 July 2021, most employees in New Zealand who meet certain criteria are entitled to 10 days’ paid sick leave per year. The Act includes the following:

• To have the entitlement you must have worked for your employer for 6 months continuously, or worked for 6 months under conditions of average 10 hours per week and at least 1 hour each week (or 40 hours each month).

• You can use the leave if you’re sick or injured  or if your partner, child, or other dependent person relies on you for care and they’re sick or injured.

• Under section 68 of the Holidays Act, an employer may require proof of sickness or injury if the absence is for three or more consecutive calendar days.

• You can carry over unused sick leave into the next year  up to a maximum balance of 20 days. So if you don’t use all your sick days this year, they can roll over (but only up to 20 days total).

• Your employer cannot give you less than this minimum but they could offer more, if the employment agreement says so.

So, if you’ve worked with your employer for 6 months and meet the hours criteria, you should have access to at least 10 paid sick days each year (that is each 12‑month entitlement period). If you don’t use them, up to another 10 can carry over so your maximum is 20. If you’re part‐time or casual (and meet the average‑hours test), the same minimum applies. You don’t get less because you work fewer days.  

Can my employer refuse to let me take sick leave?

No, provided you are eligible and you use the leave in accordance with the law and employment agreement. This is because the entitlement to those 10 days (and carry‑over) is a legal minimum. If you’re eligible, blocking you from using your available sick leave would likely breach the law. In New Zealand, sick leave is a fundamental right for employees, and employers generally cannot refuse sick leave, if you are entitled to it.

There are a few scenarios where sick leave use can become tricky.  While the employer can’t just say “no” without good reason, there can be legitimate questions about whether the leave is genuinely needed, whether documentation is required, or whether you’ve used up your sick leave days. In those cases, things get less straightforward.

If you’ve used a lot of sick leave, can the employer take disciplinary action?

Yes, but it’s delicate. Using lots of sick leave in itself isn’t automatically misconduct. But if the pattern suggests abuse,for example, repeatedly using sick leave for non‑genuine reasons, then the employer may have concerns.  The employer must approach this carefully. They need to act in good faith and consider if there is any underlying health condition (long‑term sickness or disability) that may require different handling. They also need to follow a fair process if thinking about any disciplinary or medical incapacity situation.

So you won’t usually be dismissed for taking a lot of sick leave, but if there is abuse or a genuine incapacity situation then the employment relationship may need special handling.

What if your employer refuses to accept your medical certificate or demands one when they are not legally allowed to?

Your employer is not allowed to request a certificate if you have been off less than three days unless they pay your costs, or unless the employment agreement says otherwise and you’ve agreed. It may be unreasonable for your employer to insist on a certificate for a one day sick leave and charge you for it.

If you have provided appropriate proof, and you are eligible for sick leave, then refusing to pay or recognise your sick leave may breach the law. The employer would need a strong reason, such as suspicion of a fake certificate or serious cause to doubt it,  and must act fairly.

Your employer cannot deny your application for sick leave simply because you didn’t give enough notice or they are short‑staffed.  Unlike annual leave, which your employer can sometimes refuse on reasonable grounds of business needs, sick leave is about you being unwell (or caring for someone unwell). The expectation is you inform the employer as soon as you can that you’re taking sick leave.  If you fail to notify or give no reason, then the employer may legitimately ask questions. But they cannot simply refuse your sick leave if you meet the entitlement and genuinely need the leave.

Frequently Asked Questions (FAQs)

Can I use sick leave to care for a sick family member such as a child, partner or other dependent?

Yes. The legislation allows sick leave to be used not only for your own illness or injury, but also for your partner, a child, or another person whom the employee depends on if that person is sick or injured. So if your dependent needs you, you can use your sick leave entitlement to take time off to care for them.

Can my employer stop me using my sick leave, or require me to take annual leave instead?

No.  Your employer cannot force you to use annual leave if you have sick leave and you are legitimately sick or caring for a dependent who is sick. The sick leave entitlement is separate and must be honoured. If you have sick days available, your employer should treat them as such. If you don’t have any sick days left, you might agree with your employer to use annual leave or leave without pay but that is by agreement.

When do I start accruing sick leave?

You start accruing the entitlement after you meet the eligibility of six months’ continuous employment (or the hours‑criteria for part‑time/casual). After that you have the 10 days for each 12‑month period. You also accumulate unused days up to the 20‑day cap.  Your employment agreement may provide additional or better terms (for example more than 10 days) so always check it.

What happens if I’m off sick for fewer than three days and my employer asks for a medical certificate?

The law says an employer may require proof after three or more consecutive calendar days of absence.  If your absence is shorter, your employer can still ask, but if they do, and you agree, they must cover your reasonable costs like a doctor’s visit. If they don’t agree to that, then insisting on the certificate might be unfair.

If I take sick leave, can I be disciplined or dismissed for doing so?

In general, no.  If you are legitimately unwell (or caring for someone) and you use your lawful sick‑leave days, using them should not be grounds for disciplinary action. However, if you misuse the entitlement (for example you’re not really sick, or the pattern strongly suggests abuse) or you have a long‑term health condition that means you can’t do your job and that hasn’t been handled properly, your employer may have grounds for action (including medical incapacity situations) provided they act fairly. 

What if my employer says you are not yet eligible or they don't accept that you qualify for sick leave?

If the employer says you’re not eligible (for example you haven’t worked the required 6 months or hours) then they’re correct under the law. If you have met the qualifying criteria and the employer refuses to recognise your leave, then you may raise a personal grievance or seek advice. The first step is often to discuss with the employer, show proof of your eligibility, and/or seek independent guidance.

If I leave the job, can I cash‑out unused sick leave?

No.  Any unused sick leave cannot be paid out when you leave your job. It’s a benefit you have while employed, but once you leave, the employer doesn’t have to pay you out for the unused sick leave.

Sick leave is your right when you’re unfit for work (or caring for someone who is dependent on you) and eligible. It is not a privilege your employer can withhold at will. If you find yourself in a situation where your employer is refusing your sick leave without good reason, it’s worth checking whether you’ve met the eligibility and then having a respectful conversation. If the issue continues, get advice from an expert.  An employment advocate can check if your employer has done the right thing, and if not, help you raise a complaint.  Get in touch today for a free consultation.  MathewsWalker.co.nz | 0800 612 355 

Online Form

Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.