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How to navigate the expanding boundaries of sick leave

18 Aug 2023

| Author: Reweti Kohere

Besides healing a broken arm or fighting a winter cold, there are many reasons why employees need to use sick leave – and workplaces are becoming more accepting of them. And a further expansion to the boundaries of sick leave is possible as both employers and employees grapple with more holistic notions of wellbeing.

The Holidays Act 2003 entitles employees to sick leave where they, their spouse or partner or a dependant are “sick or injured”. Proof of sickness or injury rests on a medical practitioner certifying a person isn’t fit to go to work because he or she is sick or injured.

The terms are relatively broad and can include mental health, says Daniel Erickson, a partner at Tompkins Wake and an employment law specialist.

“Where it gets into more of a grey area is in terms of spiritual or emotional wellbeing because that’s not necessarily a medical issue. It probably doesn’t sit comfortably within the Holidays Act framework to run an argument that an absence [from work] was justified on the basis of spiritual or emotional wellbeing.”


Te whare tapa whā

However, with the courts showing a greater willingness to engage with tikanga and its values, the possibility of accepting alternative models of health, which transcend the physical and mental to include the spiritual and the social in determining sickness or injury, is real.

In 1984, Māori health advocate Sir Mason Durie (Rangitāne, Ngāti Kauwhata and Ngāti Raukawa) developed Te whare tapa whā, a model describing health and wellbeing as a wharenui with four walls. The walls represent taha tinana (physical wellbeing), taha hinengaro (mental and emotional wellbeing), taha whānau (family and social wellbeing), and taha wairua (spiritual wellbeing). The connection Māori have with the whenua forms the foundation.

When these aspects of health stand strong, people thrive; when one or more is missing or damaged, one’s wellbeing becomes unbalanced, according to the model. Māori have viewed a person’s wairua, the strength of their connections to others and the balance of their mind as vital to their health as their capacity to grow and develop physically. Such a model could be taken into account today if an employee were dismissed for taking sick leave and attended a secondary school tournament for waka ama, a sport he or she was passionate about.

In attending a tournament for a sport he or she was passionate about, and by making their boss aware of issues affecting their wellbeing, an employee might be seen as doing what was necessary to heal when taking into account Māori views of health, including Tā Mason’s model. That’s the conclusion Simpson Grierson’s Rebecca Rendle, who heads the law firm’s employment national practice group, recently came to.

Rendle referred to the 2013 case of Taiapa v Te Runanga o Turanganui a Kiwi. There, the Employment Court ultimately upheld an Employment Relations Authority determination that the charitable trust was justified in dismissing program supervisor Bruce Taiapa, who had taken sick leave only for social media posts to reveal he had travelled out of town to a waka ama tournament. Taiapa had given evidence that a culturally appropriate process should have been followed with reference to the tikanga of identifying and treating physical and spiritual maladies in an individual.

Graeme Colgan, then Employment Court Chief Judge, said it wouldn’t have been unreasonable to have expected a Māori organisation, founded on and governed by tikanga, to have treated Taiapa’s “sickness” accordingly. But, critically, Te Runanga o Turanganui a Kiwi must have known about Taiapa’s issues. “Neither Mr Taiapa nor anyone else took any step to make his employer aware, even indirectly or obtusely,” the court said.


The realm of possibility

Rendle believed the court’s decision would still stand today – even with the increased understanding of the place of tikanga in employment processes. That’s because Taiapa had given 52 different explanations, many of them contradictory, which showed his sick leave wasn’t genuine.

However, the result might be more favourable to him if, for example, Taiapa’s explanations were consistent and he had informed his manager of the serious matters he was dealing with personally, which were impacting his health. “You should take real care not to prejudge what activities may be consistent with genuine sick leave and, in some cases, what is ‘sickness’ will need to be considered in light of a Te Ao Māori perspective,” Rendle said.

William Fussey, an associate in Anderson Lloyd’s employment team and a member of ADLS’ Employment Law committee, agrees that cultural or spiritual illness doesn’t necessarily fit into the current legislative definition.

But its inclusion “is not beyond the realms of possibility. The thing is, it’s highly contextual”, Fussey says. Where a workplace doesn’t accept an employee’s reason, the dispute then turns on whether rejecting a sick leave request is reasonable or not. “That’s where those frameworks, tikanga or any other cultural element, come in…That’s where you might look at the particular circumstances of the employee. If they’ve grown up under a particular framework, it’s part of [showing] good faith to say ‘actually, we need to respect that by allowing you some time off here’.”


‘We’ve moved on’

Erickson, who is on ADLS’ Employment Law committee, says while employers may be ahead of the curve in having policies addressing these ambiguities, the meaning of being unwell has at the very least broadened. “Back in the day, sickness meant you were at home, ill in bed and you couldn’t come to work. But we’ve moved on from that point.”

Sick leave can be taken for mental health reasons, to recharge after a busy and stressful work period or, in the case of period products business Hello Period, as a “duvet day” for those experiencing menstrual pain or the side effects of menopause.

Erickson says people are becoming more aware of the impact their mental health may have on their ability to work and ensuring they “aren’t doing themselves harm at work”. This, in turn, is helping to expand the boundaries of employment wellbeing.

As the concept of wellness has expanded, the concept of sickness has expanded…People are more motivated to stay home if they are unwell whereas in previous years, if you had a sniffle or a sore throat, you’d probably keep going to work,” Erickson says. “But there’s more of a mindfulness now of being contagious and not wanting to spread your germs. That is a covid thing, but it predates that in terms of the widening of the boundaries of sick leave.”


Not inconsistent

It’s generally accepted that exercise helps improve one’s mental health. Equally, the association between catching up with friends and better physical health has been made. Erickson says these activities aren’t necessarily inconsistent with being unwell and doing things to heal and recover. Where the inconsistency might arise is “if you’ve called in [sick] with a back injury and you’ve put a photo on Facebook of you carrying a rather large pig on your back”, he says, having been involved in such a case.

Fussey agrees that there has been a shift in perception. Certain circumstances that people used to view as being inconsistent with sick leave are being accepted as sickness-related. “A person being depressed or being anxious or having other mental health issues that don’t really stop them in many ways from, say, competing in a sport or spending a day with friends. They’re not going to be passing on any bugs, they’re going to be doing something positive for their wellbeing,” he says. “Arguably that could be consistent with mental health situations…if the person is genuinely struggling mentally and they need some time out, then potentially it is consistent to do that.”

Fussey acknowledges a stigma still exists around discussing mental health and this will continue to lead some employers to question mental illness as a reason for taking time off. “You’ll probably find there are employees who ring up and say ‘I’ve got a cold’ where they haven’t got a cold. They are still genuinely unwell as it relates to their mental health. They don’t want to tell their employer about it because they don’t want to be looked at in a particular way by that employer,” he says. “The stigma is far less than it used to be. It’s only perhaps in a far smaller percentage of employment places, but it certainly still exists and it’s a shame that it does still exist.”


Sickness as wellbeing

Sickness is also being perceived more broadly as wellbeing. Consequently, many wellbeing leave policies are rolling in existing sick leave entitlements or are being added to employee documentation as a benefit.

Since October 2021, in addition to their statutory four weeks’ annual leave entitlements, more than 4,500 Westpac New Zealand employees have received five days of wellbeing leave every year to help them look after themselves and their families. The move coincided with other improvements the trans-Tasman bank made to parental leave and bereavement leave.

Kiwibank also provided employees with a broader, more flexible alternative to sick leave from July 2022. “Expanded supported leave” wraps up the traditional sick leave, compassionate leave and domestic leave entitlements into one benefit, which also covers leave for gender affirmation procedures, menstruation and menopause.

More than 2,000 permanent and fixed-term staff can take as much leave as they need and when they need, provided the request is genuine and within reason. Moreover, the bank’s introduction of quarterly wellbeing leave has given employees a day off to recharge, as long as the benefit is used within the three months it has been allocated.

Fussey asks whether some of the more harder-to-justify reasons for taking sick leave will, over time, become easier to accept as more businesses start to offer additional wellbeing leave. If they can use the additional entitlement, do workers need the ability to take sick leave for “some of those more questionable elements, where you can’t quite work out whether it falls under sick leave or not?” Fussey asks.

“Does a person really need that when they have additional wellbeing leave versus someone who isn’t given an additional wellbeing leave and has to fit [their reason] within the existing framework? Is there a difference there?”


Trust and confidence


The taking and granting of sick leave is founded on mutual trust and confidence. Employees receive a benefit, employers incur, and expect to incur, the loss. Erickson says there is always scope for misuse. “If you are offering expanded benefits, you are putting trust in your people that they’re not going to abuse this and they’re not going to seek to misuse sick leave by pretending or exaggerating that they’re not [sick].

While some people might deliberately push the boundaries of what’s considered acceptable, others might do so innocently, he says. “Everyone’s different. Some people are a bit more resilient and will keep showing up if they are feeling unwell, be it physically or mentally. There will be a variety of reactions to that. But you have to take people as you find them.

“You do have to take employees on trust sometimes, that they’re not going to abuse it. But there is still scope to ask questions…Even if you are offering enhanced sick leave or unlimited sick leave even, you can still protect yourself by, in your documentation, reserving your right to ask questions, to seek proof, to get a doctor’s certificate.”

Fussey adds it has become difficult to determine genuine reasons from not-so-genuine ones. But the ability of employers and employers to earn and keep trust in one another is critical. “The more a person is upfront about things, then the more you’re going to keep that trust alive in the employment relationship. It is hugely important. Good faith, trust – all those things, they’re the fundamental basis of the employment relationship,” Fussey says.

“Obviously, there are many instances when that doesn’t happen and I see many of them day-to-day, but I also see a lot of examples where there are people operating in that matter and it really is beneficial.” ■

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