Earlier this year Neil, a clothing factory owner and member of my book group, had problems with employees suffering from “Mondayitis”. Neil’s solution was to tell them that when they had used their annual sick leave entitlement they would not be paid for more sick leave.
The improvement in his workers’ health has been remarkable, he says.
Last week Neil had a new problem. A machine operator had been off work for several weeks. According to his medical certificate he is unfit for work and will remain so till October 29. Neil had noticed this is one week after the Rugby World Cup final and was suspicious. He asked what he could do.
The medical certificate complies with the Holidays Act 2003 and the Medical Council’s guidelines for medical certificates. It certifies that in the doctor’s opinion, the employee is unfit for work because of sickness or injury during the dates covered by the certificate. Doctors can include more information (such as diagnosis or cause) only if the patient agrees, and that does not usually happen.
Neil can ask his employees for information about their ill health. He can also ask to speak to the doctor. The employee, however, doesn’t have to agree to either request. If Neil thinks the sickness might be caused by something unsafe in the workplace, he can ask the employee about this, but the employee can’t be made to answer. The employee would be wise, however, to tell Neil what is wrong.
If he doesn’t, Neil may not be responsible for any damage to the employee’s health, unless Neil should have been aware of the risk. Neil has a duty to investigate health and safety matters he knows about and to familiarise himself with potential matters.
Under the Holidays Act an employer can require an employee to show there are health and safety or hygiene reasons that prevent him returning to work. This might include the employee providing a medical certificate or undergoing a medical examination.
The employee’s employment agreement may contain provisions giving Neil the right to require the employee to be medically examined (at Neil’s cost) and receive a medical report on that examination.
An example is to determine if it is appropriate for the employee to be granted ongoing sick leave.
If Neil suspects the sickness isn’t genuine, he could conduct a disciplinary investigation. This might include requesting more information about the sickness and asking the employee to agree to a medical examination (at Neil’s cost) and to Neil getting the results of the examination.
If the employee refuses, Neil could factor that refusal into his deliberations about disciplinary action. Otherwise, if the sickness seems genuine, there is nothing more Neil can do to discover its nature or cause, unless it continues for a long period. Employers can investigate long-term ill health, but that is a topic for another article.
Neil called back this week. It turns out there is a good reason for the employee’s absence. He reacts severely to some synthetic fabrics. Until the end of October the factory is making fake fur jackets. The employee can’t work with that fabric, but he was too embarrassed to tell Neil.
All is now well again and Neil had a surprise for me – a fur jacket – to say thanks. I’m thinking about that. I may need some advice of my own – from a fashion expert.
By Penelope Ryder-Lewis, first published in The Dominion Post