Excessive use of sick leave can be a frustrating challenge for employers to face, especially when you suspect that an employee is abusing their entitlements. While it may be tempting to act upon this suspicion, it’s important to keep in mind the employee’s entitlements under the law, to ensure you manage your actions in a compliant manner.

What are my employees’ entitlements to sick leave?

Under the National Employment Standards, full-time employees are entitled to 10 days of paid personal/carer’s leave. This is calculated pro-rata for part-time employees. Paid personal/carer’s leave can be utilised when an employee is not fit to work due to an illness or injury or in circumstances where they are required to provide care or support to a member of their immediate family/household who requires care or support because of a personal illness or injury affecting the member or due to an unexpected emergency.

Can I ask for proof of sick leave?

Employers can ask their employees to provide evidence confirming their absence from work. There’s no minimum period of leave required before an employer can request this. An employee who refuses or fails to provide evidence might not be entitled to be paid for their absence. It’s important to consider this entitlement for evidence in conjunction with existing employment contracts, policies and enterprise agreements in place, which may contain their own provisions pertaining to the requirement to provide evidence to take paid personal/carer’s leave.

The type of evidence provided may depend on the reasoning for the leave. The evidence must be of a standard that would satisfy a reasonable person that the employee was entitled to take leave for the permitted reason. This may include a medical certificate or statutory declaration.

How is my employee protected under the law during a period of sick leave?

It’s unlawful to terminate an employee due to their temporary absence due to illness or injury, as outlined in section 352 of the Fair Work Act 2009. The Fair Work Regulations provide protection for employees who are absent from work on a period of paid personal leave for a consecutive three-month period or a total of three months over a 12-month period. However, where the absence extends past this time and the employee is no longer on paid personal leave, then an employer is not prohibited from terminating the employee’s employment, however, it must be aware of other risks that are present.

That is, an employee who’s dismissed on a period of absence due to illness or injury will still have access to other workplace claims such as general protections claims, unfair dismissal claims, and discrimination claims under the applicable Federal or State anti-discrimination legislation.

What can I do while my employee is away on prolonged or consistent periods of sick leave?

If your employee is on a prolonged period of leave or consistently takes time off for illness or injury, you’re entitled to request evidence for all periods of absence. To ensure that your business doesn’t experience hardship for the entirety of the absence, consider onboarding a casual employee or offering shifts to existing part-time staff to fill last-minute shifts as required. After a period of three months has elapsed, or the employee has been absent for more than three months over a twelve-month period, you may wish to seek advice on how to must manage the situation moving forward.

How enableHR can help?

You don’t have to spend weeks studying the legislation – call enableHR today and ask us if your HR platform is set up to comply with requirements.

We believe HR should be simple. Simple enough for you to run your business confidently. Inside enableHR is everything you need to manage the entire employee lifecycle, from recruitment and onboarding to managing your people and termination. If you’d like to see enableHR in action, contact us to learn more about how we can help your business – request a demo today!