Dealing with 'sickies'

By Chloe Luscombe
Solicitor
Kensington Swan Lawyers

Much time and energy has been devoted to the wonders and dangers of the internet and how it impacts on employment law obligations.  However a new scourge has arisen in the war against employees who ‘pull sickies’ – doctorsnotestore.com.  This website purports to sell New Zealand medical certificates for ‘novelty purposes’.  According to the website, for the low, low price of $59.99, you can be the proud owner of an “authentic looking replica doctors sick certificate, or New Zealand Sick Note Written on official doctors notepaper, with a doctors stamp [sic]”

What does this mean for employers? Another weapon in the arsenal of the wayward employee?

There are, however, a few weapons up employers’ sleeves too.

When can an employer request a medical certificate?

The Holidays Act 2003 allows employers to request a medical certificate after just one day of absence, if the employer has reasonable grounds to suspect that the absence may not be genuine, and foots the bill for the certificate.  In addition, after three consecutive days absence, whether or not they would usually be working days for the employee, employers can require a medical certificate at the employee’s expense, regardless of the perceived genuineness of the illness.

So is it real?

But what happens when medical certificate appears to be a fake?  Often employees provide employers with photocopies or digital scans of the actual medical certificate, making it hard to determine whether details have been altered.

As a first step, the employer could check the white pages to see if the doctor exists.  Alternatively the medical council website has a ‘find a registered doctor’ feature, which allows users to search to see whether someone is a registered medical practitioner. 

If Dr Fakeasickie does not appear in either place, it may be time to make some additional inquiries of the employee.

It’s worth noting that Doctorsnotestore.com includes a feature where users can provide the name of an actual doctor and real medical facility.  This may mean that employers need to take further steps to determine whether a medical certificate is real or an authentic looking replica. Accordingly, it may still be worthwhile faxing the medical certificate to the doctor and asking them to confirm its genuineness.

Dismissing an employee for faking a sickie

Clearly, if a medical certificate is not genuine, the employer will have grounds to instigate a disciplinary investigation into the employee’s conduct and, if appropriate, dismiss the employee or take other disciplinary action. This would of course have to follow the usual rules.  Employers also need to bear in mind that the fact the medical certificate is not genuine or has been altered, may not be enough to dismiss the employee if there are mitigating circumstances, or a reasonable explanation.  As with any employment investigation, when faced with what appears to be an open and shut case, employers still have to keep their minds open.

Criminal sanctions

For employees considering whether or not they should give doctorsnotestore.com a whirl, there are further considerations beyond simply risking their employment.  It may be a crime to use a forged document as if it were genuine, if the person knows it not to be.  The offence is punishable by up to 10 years imprisonment. 

What medical information can an employer seek?

Although employers cannot require an employee to disclose medical information about themselves or be examined by a doctor of their choosing, there are some options open to an employer who has issues with prolonged or excessive intermittent sick leave.  The employer can manage the situation by asking the employee to attend a meeting to discuss their use of sick leave. 

If the employer has significant concerns about how that sick leave is impacting on the business and the employee’s performance, employers can request that the employee obtain up-to-date medical information from their practitioner outlining their prognosis for the future.  The best way to do this is for the employer to write a letter to the employee’s doctor asking specific questions, which will assist the employer to make a decision regarding the ongoing viability of the employee’s employment.  The employee does have to consent to the disclosure of this information, however, in the event an employee refuses, the employer is entitled to make a decision based on the information available.

If the employer does not have a great deal of faith in the information they have been provided by the employee’s doctor, they can seek a medical examination by a doctor of their own choosing – in most instances employers will have provisions in their employment agreements allowing them to require an employee to undergo a medical examination.  The employee is entitled to withdraw their consent at any time. However, again, in the event they refuse, the employer can make a decision based on the information they have. 

Although it may appear that the Privacy Act and employment law shields employees from the rigours of explaining their medical situation, there are options open to employers.  Provided these are exercised in a fair and reasonable manner, employers are able to obtain the information they need to make decision about an employee’s ongoing employment.