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employment

What happens if you get sick while on annual leave?

Key Takeaway

If an employee falls sick or is injured while on annual leave in New Zealand, they may be able to convert those days to sick leave, provided they notify their employer and, if requested, provide proof of illness. This allows the annual leave days to be reinstated for later use, subject to the employee's sick leave entitlements.

Sickness During Annual Leave in New Zealand

In New Zealand, specific provisions exist for employees who become sick or injured while they are on annual leave. Annual leave is paid time off work granted to an employee for rest and recreation [Source: Holidays Act 2003, s 16]. Sick leave is paid time off work an employee can take if they are sick or injured, or if a dependent is sick or injured [Source: Holidays Act 2003, s 65].

Converting Annual Leave to Sick Leave

If an employee becomes sick or injured while on annual leave, the days they are sick or injured may be reclassified as sick leave instead of annual leave. This means those annual leave days can be 'recredited' to the employee's annual leave balance for use at a later date [Source: Holidays Act 2003, s 66(1)].

Conditions for Conversion

For annual leave days to be converted to sick leave, certain conditions must be met:

  • Employee Notification: The employee must advise their employer as soon as practicable that they are sick or injured and wish to use their sick leave entitlement [Source: Holidays Act 2003, s 66(1)(a)].
  • Proof of Sickness or Injury: The employer may require proof of sickness or injury, such as a medical certificate, for the period the employee claims to be sick or injured. If the period of sickness or injury is for 3 or more consecutive calendar days, the employer may require proof. If it is for less than 3 consecutive calendar days, the employer may only require proof if they agree to pay the employee's reasonable expenses in obtaining it [Source: Holidays Act 2003, s 66(1)(b), s 68]. A medical certificate is a document from a registered health professional confirming an illness or injury.
  • Sick Leave Entitlement: The employee must have an available sick leave entitlement to cover the period of sickness or injury [Source: Holidays Act 2003, s 66(1)(c)].

Employee's Responsibilities

An employee's primary responsibilities when falling sick during annual leave include:

  • Notifying their employer promptly about the illness or injury and their intention to use sick leave [Source: Holidays Act 2003, s 66(1)(a)].
  • Providing proof of sickness or injury if requested by the employer and if the conditions under the Holidays Act 2003 for requiring such proof are met [Source: Holidays Act 2003, s 68].

Employer's Responsibilities

Employers have obligations to:

  • Recredit annual leave and deduct sick leave if the employee meets the specified conditions [Source: Holidays Act 2003, s 66(1)].
  • Pay the employee for the converted sick leave days at their relevant daily pay or average daily pay, as applicable [Source: Holidays Act 2003, s 9, s 10, s 66(1)(c)].
  • Avoid penalising an employee for exercising their rights under the Holidays Act 2003 or the Employment Relations Act 2000 [Source: Employment Relations Act 2000, s 103A (regarding personal grievance for unjustifiable disadvantage)]. A personal grievance is a formal complaint an employee can raise against an employer regarding an action or omission related to their employment.

Sick Leave Entitlements

Employees are generally entitled to:

  • 10 days of sick leave after completing 6 months of continuous employment with the same employer [Source: Holidays Act 2003, s 65(1), s 65(2)].
  • An additional 10 days of sick leave for each subsequent 12-month period of continuous employment [Source: Holidays Act 2003, s 65(2)].
  • Sick leave can accumulate up to a maximum of 20 days [Source: Holidays Act 2003, s 69].

What if Sick Leave is Exhausted?

If an employee's sick leave entitlement is exhausted, the days of sickness or injury occurring during annual leave will generally remain annual leave days. In such cases, the employer is not legally obligated to convert them to sick leave or grant additional paid sick leave. Any further time off due to sickness would typically be unpaid, unless the employment agreement provides for additional leave or the employer agrees to it [Source: Holidays Act 2003, s 66(1)(c) implies this by requiring an available entitlement].

Record Keeping

Employers are required to keep accurate records of employees' leave entitlements, including sick leave and annual leave balances, and any leave taken [Source: Holidays Act 2003, s 81(1)]. Employees also benefit from keeping their own records of leave requests and any medical certificates provided.

Disputes

If a dispute arises between an employee and employer regarding sick leave during annual leave, the parties are encouraged to resolve it through good faith discussions. If resolution is not achieved, the matter may be referred for mediation services or to the Employment Relations Authority, as outlined in the Employment Relations Act 2000 [Source: Employment Relations Act 2000, s 135, s 159].

When to Seek Independent Legal Advice

Individuals facing complex situations regarding leave entitlements, disputes with their employer, or concerns about their rights and obligations should seek independent legal advice. This includes situations where an employer is refusing to convert leave, questions arise about payment calculations, or if an employee feels they are being disadvantaged. Free legal advice may be available from Community Law Centres throughout New Zealand [https://communitylaw.org.nz/].

Key Resources