January 22, 2020
Getting sick is a part of life and happens to the best of us.
While covering sick employees is tough, the last thing you want is staff members coming to work if they’re not feeling well. Not only can they infect others but their job performance and productivity might suffer.
But what happens if you have the opposite problem and an employee is constantly calling in sick? You most likely start to question their motives and honesty.
Are you unsure of all the laws surrounding personal / carer’s leave in Australia? Or what to do if you suspect an employee is not using their personal/carer’s leave correctly?
Keep reading to learn practical suggestions on how to handle someone who keeps calling in sick.
Laws surrounding sick days and paid time off are in place to protect both employees and employers. In Australia, sick time leave is known as personal/carer’s leave
Under the Fair Work Act 2009 national system, permanent employees are entitled to 10 days of paid personal/carer’s leave per year. Employees rollover any unused time but will not ordinarily receive a payout for unused sick days once they retire or leave the company (unless the employee’s Modern Award or enterprise agreement provides for differently).
Employees can use personal carer’s leave in Australia for the following reasons:
Employees can use this time for their own mental health. Employers are responsible for funding all paid personal/carer’s leave in Australia.
*a family member as defined by the Fair Work Act
Personal Carer’s Leave is intended to be used when needed. But what can you do when an employee keeps calling in sick? And how do you stop employees from illegitimately accessing the entitlement?
If you suspect an employee is abusing their personal/carer’s leave, it’s important you document their behaviour. Keep a record of when the employee calls in sick including dates, times, and reasons for the absence.
As an employer, you can request evidence from an employee to support their reason for calling in sick – for example, a medical certificate.
Generally, a doctor’s certificate has to be taken on face value. That is, if a doctor says the employee is too ill to work, then they’re too sick to work.
Although an employer can challenge a medical certificate, the circumstances for doing so are rare.
For instance, an employer may be able to challenge a certificate because it appears fraudulent.
If an employee fails to provide requested evidence to support their time off work, they are not entitled to be paid for the absence. An employer can discuss their concerns with the employee and potentially take disciplinary action. (It’s important to note that the employer must also give the employee a reasonable timeframe to produce evidence).
So what do you do in this case?
First, you might wish to approach them with a positive attitude. Tell them you’ve noticed they’ve been calling in a lot lately and you’re concerned.
Ask if everything is okay and if there’s anything you can do to help.
It can be very frustrating when an employee is constantly calling in sick. It leaves your company short-staffed and puts pressure on other staff members to pick up the slack. But can you fire someone for habitually calling out of work?
In short, you can terminate an employee in certain circumstances.
A dismissal involving absence from work however, can be risky and it is best to seek professional advice on such cases.
Also keep in mind that the employee’s Modern Award or workplace agreement, if applicable, may make provisions for dismissing an employee in this case.
Understanding the different policies surrounding personal/carer’s leave and other employee entitlements will help protect your business.
The Fair Work Act is intended to provide a balanced framework for productive workplace relations which promotes national economic prosperity and social inclusion.
Full time employees are granted four weeks of annual, paid time off. This time is often used for holidays but can be used for whatever the employee chooses.
Unused annual leave is rolled over into the next year. If an employer feels the employee is accruing excessive paid annual leave, they can suggest the employee takes paid time off. This needs to be mutually agreed unless the legislation or relevant industrial instrument permits the employer to make a direction to the employee to take leave.
Personal/carer’s leave is an entitlement that allows employees to take time off work if they are ill, injured or otherwise unfit to work, or if they have to care for a family member (as defined by the Fair Work Act 2009) or member of their household.
Under the National Employment Standards, full-time and part-time employees are entitled to 10 days of personal/carer’s leave per year. Any unused time carries over to the next year.
An employee’s Modern Award or workplace agreement (if applicable) may have different provisions regarding personal/carer’s leave than the above. However, these provisions will not be below the minimum standards discussed above.
It’s important that you understand the many laws, regulations, and entitlements that surround sick leave for employees. There are good and poor ways of addressing the issue of an employee habitually calling in sick.
From having an honest, open conversation about their health and their ongoing fitness to undertake their role, to initiating disciplinary procedures where processes surrounding sick leave have not been adhered to, there are several ways to handle what appears to be excessive use of personal/carer’s leave.
Need help revamping your current policies or needing advice about how to be more compliant with workplace regulations? The professionals at Employsure can help.
Learn how many paid sick leave a part-timer is entitled to and how much to pay them.
Under the Fair Work Act 2009, permanent full-time and part-time employees are entitled to 10 days of paid personal / carer’s leave.
Casual employees cannot access paid sick leave. However, they are entitled to take unpaid sick leave.
The conditions of an employee’s Modern Award or enterprise agreement, if applicable, may differ from the above minimum standards.
Mental health illness impacts employees as much as physical illness or injury. Does that mean an employee can call out sick due to stress?
If an employee is experiencing mental or physical health problems due to stress, and therefore is not capable to work, then that employee can take time off and access personal / carer’s leave.
If an employee is rendered unfit to work due to stress and appropriate evidence is provided, then it can be counted as personal / carer’s leave.
An employer can confirm an employee is unable to take personal/carer’s leave if the employee’s reason for the leave does not fall under the legislation. For example, if they are asking to take carer’s leave for someone who is not in their immediate family or household, as defined by the Fair Work Act.
Employees are protected for three months under the Fair Work Act 2009 if they are suffering from a ’temporary’ illness. An employee’s Modern Award or enterprise agreement may set out more specific terms.
As long as employees follow your company’s policies and national system laws regarding sick leave, they cannot be disciplined for misconduct. It is important that employer’s policies and procedures are implemented consistently.
The employee’s Modern Award or enterprise agreement may contain provisions defining excessive absenteeism.
Here are some of the most common causes of absenteeism:
There are no rules or regulations surrounding contact between the employer and employee during personal/carer’s leave. This is left to the discretion of the employer but should be handled in a sensitive manner.
Avoid contacting the employee excessively or during odd hours of the day. This is especially important if the employee is out due to stress or mental illness.
Try a courteous phone call or send an email to see how they’re feeling. You can also allow them to work from home, if possible.
When an employee is calling in sick frequently, it can be tempting to ask what their illness is or what’s wrong. Remember, employee’s do not necessarily need to disclose the nature of their illness unless it is something that will impact on their ability to perform their work.
One of your rights as an employer is to request evidence, such as a doctor’s certificate.
Looking to reduce the amount of time your employees are out sick? Here are ten tips to reduce sick leave in the workplace.
By creating a positive and responsive work environment, employees are more likely to show up and less likely to take advantage of sick leave.
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