With the weather cooling down, the number of sicknesses in the workplace is increasing. When an employee presents at work sick, not only are they more likely to spread their illness, but they are also costing the employer money. In 2009/2010, the total cost of presenteeism (an employee coming to work sick) to the Australian economy was estimated to be $34.1 billion. On average, 6.5 working days of productivity are lost per employee annually as a result of presenteeism.

So what can an employer do in the circumstances when an employee comes to work sick? These Q+A’s look at how to manage sick employees and some of the key issues that employers must watch out for.

How much sick leave are employees legally allowed?

Under the National Employment Standards in the Fair Work Act 2009 (Cth) (“FW Act”), full time employees are entitled to 10 days’ paid personal leave and part-time employees are entitled to pro rata of 10 days’ each year depending on their hours of work. Casual employees are excluded from paid personal leave. Employees may be awarded more generous sick leave entitlements under their award, enterprise agreement or employment contract.

What are the notice requirements in taking that sick leave?

If a permanent employee wishes to take personal leave, the FW Act provides that notice must be provided as soon as practicable setting out the expected period of leave. Notice can be given before or after the taking of the leave. When an employee takes personal leave, an employer can request evidence that would satisfy a reasonable person, such as a medical certificate or statutory declaration that sets out the reason for the leave taken. Awards and enterprise agreements may contain provisions about the type of evidence required.

Do employers have any obligations under any Work Health and Safety legislation?

Employers have a duty of care under the Work Health and Safety Act 2011 (NSW) (“WHS Act”) to ensure, so far as reasonably practicable, the health and safety of workers. Similar provisions can be found in corresponding work health and safety legislation around Australia. Conversely, workers under the WHS Act have a duty to take reasonable care for their own health and safety, and take reasonable care that their acts and omissions do not adversely affect the health and safety of other persons. They must also comply with reasonable instructions and cooperate with policies and procedures given by their employer that have been notified to the employee.

In these circumstances, if an employer reasonably suspects that the employee is posing a health risk to other employees, for example, if the employee has signs of a contagious disease such as chicken pox, the employer may consider it necessary to ask the employee to obtain a medical certificate indicating whether or not the employee is fit for work.

Best Practice Tips for Employers

• Setting up an organisational culture which supports employees in the taking of personal leave in appropriate circumstances will avoid the spread of sickness to other employees.
• Creating a workplace sick leave policy and establishing expectations around the taking of sick leave. Employees must be aware of any notice requirements around the taking of sick leave and any expectations that employers have regarding coming to work sick or leaving work early due to sickness. This will avoid employees coming to work sick due to any confusion about who to speak to, what they need to do and what they are entitled to in the event that they are sick.
• Including a clause in an employee’s employment contract acknowledging that they may be required to attend a medical examination in relation to their fitness for work.
• Focusing on health and well-being in the workplace, including offering wellness programs, such as subsidised gym memberships and flu vaccinations.