Recent stories of Dunedin students selling positive RAT test results on Facebook raise serious issues as to sick leave fraud in workplaces, and what rights employers have to request proof of illness.  Given that a positive RAT test is likely to result in a requirement for self-isolation for at least 7 days, the stakes are high for many employers.

The starting point is section 68 of the Holidays Act which says that an employer may require an employee to produce proof of sickness if they are unwell for three or more consecutive days, whether or not the days would otherwise be working days for the employee.  An employer can also require proof of sickness without waiting for 3 days if they inform the employee as early as possible and meet any reasonable expenses.  So effectively an employer could require proof of sickness as soon as an employee called in sick, provided they were prepared to pay for it.

Importantly an employer does not need to be able to justify why they are requiring proof – these are rights employers have under the Holidays Act and they can be exercised at any time if an employer is not satisfied with an employee’s explanation.

This brings us to what proof an employee is required to provide.  Turning back to the Holidays Act, section 68 also says that “proof of sickness or injury may include a certificate from a health practitioner” stating that the employee is not fit to attend work.

Whilst this section does not restrict other forms of proof from being provided, given the potential for RAT test results to be misused, borrowed or purchased, an employer may be justified in requiring more in the case of a covid related absence.  This could include asking the employee to undergo a supervised RAT test, or producing a medical certificate from their doctor.

Where a medical certificate is provided by a health practitioner, an employer can not generally second guess it or require confidential patient information to be disclosed, including a diagnosis.  However they are entitled to insist that it contains sufficient details of the period when the employee cannot attend work, and that this is due to illness.

In most instances, workplaces operate on a high trust model, and so an employee telling their boss that they have received a positive RAT test, would likely be enough.  However, employers can ask for better proof if they smell a RAT. 

Further any employee caught providing false information in support of a claim for sick leave, including using someone else’s RAT test result, will be liable to dismissal.  In this regard, misuse of sick leave is basically stealing time from an employer and is generally viewed as a serious dishonesty related offence.  This type of conduct also has the potential to cause significant collateral damage in workplaces which are already suffering from significant staffing shortages, if the employee’s close contacts then also need to isolate.

There is no doubt that many employees have had to plough through over the past several weeks and months in very difficult working conditions.  They may well feel as though they need some time off work to recuperate.  But there are other, better, ways of approaching this than faking RAT test results. 

Given that mental health is an equally valid reason for taking sick leave as a physical illness, an employee could likely get a legitimate sick leave certificate if they told their GP they were suffering burn out or otherwise needed a mental health break.   Employers are also generally open to having honest and constructive discussions about supporting employees in these situations.

I am going to put the sale of positive RAT tests down as a poorly judged student joke.  If it is not a joke, and this is actually happening, the people involved need to be ratted out.