The Royal New Zealand College of GPs recently pleaded with employers not to require employees to produce medical certificates until after seven days of illness, rather than the usual three. This message was reinforced by the Ministry of Health which advised that employees could use texts from the Ministry as proof either that they have COVID – 19 or are a household contact. The Ministry’s statement said that such texts were “reliable evidence” that employees need time off work, and could be used “rather than asking for a traditional GP medical certificate”.
College medical director Brian Betty explained the problem;
“We have a situation at the moment where the system is essentially at capacity in terms of the winter illnesses we have such as influenza, Covid, RSV, and certainly it’s an additional burden that at times is probably unnecessary and its one that GPs reflect back to me quite frequently on.”
Betty also pointed out that the messaging from health system was that if an employee was sick or unwell with the flu or flu like symptoms, they should stay at home. Further, employees are legally required to stay at home if they have COVID-19, so requiring a medical certificate within this timeframe needs to be reconsidered, he said.
Ideally an employer and their employee would discuss and agree on how to deal with any COVID – 19 related absences. However there will inevitably be situations where there is less trust in the relationship and an employer seeks to insist on its legal rights.
Under the Holidays Act an employer may require an employee to produce proof of sickness or injury after 3 or more consecutive calendar days, whether or not the days would otherwise be working days. In other words, if an employee calls in sick on Friday, and is still away on Monday, the requirement to provide a medical certificate will be triggered.
Employers can also require proof of sickness or injury at any time, including on the first day of illness, if they inform the employee as soon as possible that proof is required, and they cover reasonable expenses.
In relation to what constitutes “proof”, the Act provides that this may include a certificate from a health practitioner stating that the employee is not fit to attend work, or can not do so because a partner or dependent is sick or injured. However the legislation does not allow an employer to dictate who the proof must be obtained from.
These provisions have led to a number of cases in which employers have claimed that the medical certificates presented by employees are insufficient. In one case involving Noyes and TWCE (2014) Ltd the employer argued that the certificate was too vague, and the Authority agreed. Nonetheless, the Authority found that despite the employer’s suspicion about the symptoms disclosed, the view of the medical practitioner was that these symptoms were consistent with illnesses prevalent in this community at that time and with a pre-existing injury for which Noyes was receiving treatment, and this should be regarded as sufficient evidence.
In Sheppard-Johnson v Zeros Coffee Ltd, the medical certificate stated simply that the employee was not fit to attend work because of sickness or injury. The Authority found that there was a statutory presumption that a medical certificate is sufficient proof of sickness or injury, but this could be rebutted. The employer could not simply reject a medical certificate but was entitled to seek additional evidence, either from the doctor issuing the certificate, or by way of a second expert opinion.
As to whether a text from the Ministry of Health must be accepted as proof of illness, the likely answer is no. This is because such texts are issued on the basis of self-reporting, with no physical or clinical examination of the person concerned.
The Medical Council of New Zealand has issued guidance on medical certification. This includes an expectation that any information it contains should be based upon clinical observation, with patient comment clearly distinguished from clinical observation. It also states that certificates should provide the necessary information required by the receiving agency and consented to by the patient. This need not include disclosing a diagnosis, but should include a statement of what work activities it would be safe for the employee to undertake and appropriate restrictions, or unsafe activities that the patient should not undertake. If the patient is fit for some duties, this should be recorded.
In practice many medical certificates do not include this level of detail, but in accordance with the Medical Council guidance, an employer would be within their rights to request it.
Despite the pressure on the health system, employers remain entitled to insist on requiring proof of absence in any case, strictly in accordance with the Holidays Act and Medical Council guidance. Whether they are inclined to do so will likely depend on if they have confidence that their employees are being open, transparent and trustworthy.