Can I Be Fired For Taking Too Much Sick Leave?

Many employees worry about taking sick leave. You might feel unwell but still show up to work because you are worried your employer will think you are taking too much time off.  A common question employees ask is “Can my employer fire me for using too much sick leave?”  The answer is not simple. In New Zealand, employees have a legal right to sick leave. However, there are situations where an employer may be able to end someone’s employment if ongoing illness means they can no longer do their job.

What is my legal Right to Sick Leave

Sick leave in New Zealand is governed by the Holidays Act 2003.  Most employees are entitled to 10 days of sick leave per year once they have been employed for six months.  You become entitled to sick leave if you have worked for the employer for six months and during that time you have worked either:

• An average of at least 10 hours per week, and

• At least 1 hour in every week, or 40 hours in every month.

Once you reach that six-month mark, your sick leave entitlement becomes available to use.  Importantly, sick leave is a minimum legal entitlement. Some employers provide more generous sick leave provisions in employment agreements or workplace policies.

What can I use my Sick Leave For?

Sick leave is not just for when you personally feel unwell.  Under New Zealand law, sick leave can be used when:

• You are sick or injured

• Your spouse or partner is sick or injured

• A dependent person is sick or injured.  A dependent could include a child, partner or a family member who relies on your care.  

This means sick leave can be used to care for someone else, not just yourself.  For example, it would usually be reasonable to take sick leave if:

• Your child is home sick from school,

• Your partner is injured and needs support, or 

• You have a contagious illness and should not attend work.  

However, sick leave should not be used as general leave or extra annual leave.

How does Sick Leave Accrue and when Is it  Topped Up?

Sick leave does not accrue gradually like annual leave.  Instead, employees should receive a block entitlement each year.  After 6 months of employment you should receive 10 days of sick leave.  After each 12 months of employment, your entitlement should be topped up by another 10 days.  If you still have unused sick leave remaining, it can carry over, but there is a limit.

How Much Sick Leave Can Be Carried Over if I don’t use it all each year?

Under the Holidays Act the maximum sick leave balance is 20 days.  Unused sick leave carries over from year to year, but only up to 20 days maximum.  Some employers allow employees to accumulate more than 20 days, but this would need to be written into your employment agreement or a workplace policy.  Employers cannot offer less than the legal minimum, but they can offer better conditions.

How Workplace Policies Might Treat Sick Leave

Many workplaces have sick leave policies in addition to legal entitlements. These policies often cover:

• When you must notify your employer,

• When medical certificates are required,

• What happens if sick leave is used frequently, and

• Whether unused sick leave can accumulate beyond the legal limit. 

For example, a workplace policy might say:

• Employees must notify their manager before their shift starts,

• A medical certificate is required after three consecutive sick days, or

• A certificate may be required earlier if the employer pays for it. 

Policies can also address patterns of sick leave, such as frequent single-day absences, sick leave taken regularly before or after weekends or absences during busy periods.  However, policies cannot override legal rights.  

Can I be Dismissed for Using Sick Leave?

In most cases, an employee cannot be dismissed simply for taking legitimate sick leave.  Sick leave is a legal entitlement.  However, there are two situations where sick leave may become a serious issue.  

Misuse of Sick Leave

If an employer believes an employee is misusing sick leave, this could become a disciplinary issue.  For example, concerns might arise if:

• The employee claims to be sick but is seen working another job,

• The employee repeatedly takes sick leave before weekends or holidays, or

• The employee provides false information about illness.  

In these cases, the issue is not the sick leave itself, the issue becomes misconduct or dishonesty and may lead to an investigation and disciplinary process.  The employer would need to go through a fair disciplinary process could a warning or dismissal occur.

Ongoing Illness and Medical Incapacity

The more common situation is where an employee has genuine ongoing health problems.  If someone is frequently absent due to illness, an employer may begin an incapacity process.  This is not disciplinary, instead, the employer is considering whether the employee is able to continue doing their job.  However, dismissal for medical incapacity is very serious and requires a careful process.

What Steps Does An Employer Need To Take Before Dismissing Someone for Illness?

An employer cannot simply decide that an employee has taken too much sick leave and terminate them.  They must follow a fair and reasonable process.

The first step would be to identify the problem such as frequent absences, long-term illness or uncertainty about when the employee can return from injury or illness.  They would then discuss the situation with the employee and explain the concern.  The employee should be told that the employer is reviewing their ability to continue working.  As part of the process, employers often request medical information, such as a medical certificate, a specialist report or information about expected recovery - this may include ACC if the absence is due to an injury.   In some cases the employer may request an independent medical assessment.  

Once they have all the information they should consider any alternatives to dismissal such as reduced hours, modified duties, temporary or permanent adjustments and/or a phased return to work.  This is particularly important where the illness may qualify as a disability.  The employee should be given the opportunity to comment on medical information, provide their own medical evidence and suggest possible solutions.  

Only after considering all information can an employer decide whether employment can reasonably continue.  If the employee is unlikely to return to work within a reasonable timeframe, dismissal may become possible.

What Is 'Too Much Sick Leave'?

There is no set number of sick days that automatically leads to dismissal.  Instead, the key question is can the employee reasonably perform their role?  Some factors an employer should consider include the length of the illness, the likelihood of recovery, the impact on the workplace, the size of the business and whether alternative duties are available.  For example, a short-term illness lasting several weeks is unlikely to justify dismissal but if someone has been unable to work for many months with no expected return, the employer may eventually be able to end the employment relationship.

When Should I Get Advice?

You should consider getting advice if your employer is investigating your sick leave use, you are being asked to attend medical assessments, your employer is discussing medical incapacity, or you believe you are being treated unfairly for being sick.   Employment advocates can help ensure the process is fair and lawful.

FAQs

Can my employer fire me for taking sick leave?

Generally, no. Sick leave is a legal entitlement. However, dismissal may occur in rare cases involving misuse of sick leave or long-term incapacity.

How many sick days do employees get in New Zealand?

Most employees receive 10 days of sick leave per year after six months of employment.

Can unused sick leave carry over?

Yes. Sick leave can carry over, but the maximum balance is usually 20 days unless your employment agreement allows more.

Can an employer require a doctor’s certificate?

Yes. A medical certificate can be required after three consecutive sick days. If requested earlier, the employer must pay for it.

Can I use sick leave to care for my child?

Yes. Sick leave can be used when a dependent person, such as a child, partner, or family member, is sick or injured.

What if my employer says I take too much sick leave?

Your employer must raise concerns with you and follow a fair process before taking any action.

Can I be dismissed if I am seriously ill?

Possibly, but only after a proper medical incapacity process. The employer must consider medical evidence and whether you are likely to return to work.

Sick leave exists so employees can recover from illness and care for family members without risking their jobs.  Most employees who use their sick leave legitimately should not face disciplinary action.  However, if illness becomes ongoing and prevents someone from performing their role, employers may eventually consider whether employment can continue. Even then, the law requires a fair, careful process. 

If you are worried about your sick leave or facing pressure from your employer, it may be helpful to seek advice before the situation escalates.  Get in touch today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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