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Consistent policies the right medicine for sick leave abuse

Published on Saturday, 26 Jul 2014
Kethleen Healy
Laura Chapman

The Problem

Employee sickness absence is an issue that affects every business and can be costly if not dealt with effectively. All too often, employers can find themselves in difficult situations where frequent or prolonged absences are not managed appropriately or are left unchecked. In the modern workplace, a trend in frequent or long-term absence can give rise to real business challenges. While no two absences are the same, the good news is that there are some practical steps that employers can take to prevent or manage and minimise the effect of any absences.

The Prevention

As with most issues, prevention is better than cure. Taking some relatively simple steps can reap long-term benefits.

First, it is important to ensure you have a clear policy on the procedure employees should follow when they are absent due to illness. The policy should set out what an employees’ responsibilities, are when they are ill, their entitlements, and the process they should follow in the event of an absence. 

In particular, it is good to clearly explain the employer’s stance on paid sickness leave. 

In Hong Kong, employees are only entitled by statute to be paid sick leave once they have been absent for four days or more. Sick-leave entitlements beyond this will generally be governed by the employee’s contract of employment or the employer’s policies. 

Having a clear policy in relation to payment – and enforcing it – can help to avoid abuse of sick-leave entitlements. Some employers also offer access to seasonal flu vaccinations, health assessments and training sessions that boost general health awareness. Providing access to an employee assistance programme or giving general information on how to manage stress can also help. 

 While these line items can look like unnecessary expenses on a budget, they demonstrably contribute to a reduction in sickness absences and better business continuity. As most employers know, however, it’s almost impossible to prevent frequent or long-term absences from happening occasionally, so it’s important to know how to deal with them when they occur. 

The starting point is to ensure that a robust policy exists, but also that the policy and is followed closely. Consistency is key. Difficult situations can arise when absences are ignored initially or seen as being too complex to deal with, or if the policy is not followed in practice. 

For example, if the employer’s policy requires that a staff member self-certifies any absence of two days or less, there should be a mechanism in place to ensure that happens each and every time. In order to do this effectively, employers should maintain appropriate contact with employees about their illness and their prognosis. 

If employees are absent for an extended period, employers need to communicate regularly with that staff member about their recovery and managing their return to the workplace. Similarly, if an employee has had a number of short-term absences, the employer should meet with him or her to ascertain the cause of the absences and whether anything can be done to prevent them. Notes of the meeting should be made and kept on file. 

These steps serve a dual purpose. For the bulk of employees, who are genuine about the cause of their absences, regular communication will help them resume work more comfortably. For the minority of situations where an employer must take action against an employee, regular communication can be vital in addressing behavioural issues such as unreasonable absenteeism. 

It is important to remember that absences could also be an indicator that something is wrong at work, for example, where an employee is being bullied or harassed. Talking with the employee about the reason for their absence may help to identify problems that could otherwise go unchecked. 

If the absence has reached the critical point where an employer feels that action needs to be taken against an employee, then it should be taken promptly, or the employer will run the risk of indirectly condoning the employee’s behaviour or setting a precedent to other employees. A business may also limit its options by reaching a point of no return. 

In considering taking action, however, there are various issues that employers should watch out for, as listed below.

The Pitfalls
Employers need to ensure they stay onside of anti-discrimination ordinances. Hong Kong has a very well-developed set of ordinances for issues of discrimination on the basis of – among other things – physical disability. 

If an employee is unable to work because of an illness or injury that constitutes or is related to a disability, an employer is likely to have a duty to make adjustments to the employee’s work environment and/or their job description generally to assist the employee in returning to or continuing to work. 

Employers may also be restricted in the action that they can take against an employee who has a disability due to the protections given in the ordinance. This is particularly the case where termination is being considered. In turn, the risk of the employee taking a claim against the employer for any action taken is generally higher. 

 The dismissal of staff members while they are entitled to receive statutory sickness allowance is prohibited, as is a dismissal of a staff member while they are receiving statutory compensation following a work-related injury.

There is no ‘one size fits all’ approach for managing significant periods of employee absence in the workplace, however there are guiding principles that work in almost every situation. The goal of an employer should generally be to enable the safe and comfortable return of staff members at the appropriate time. If companies have – and consistently use – policies that build towards that goal, they will most likely find themselves on the right side of the law. 

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought. 

 


Kathleen Healy is a partner in Freshfield’s expanding Employment, Pensions and Benefits practice in Asia-Pacific employment and HR projects.

Laura Chapman is a senior associate in Freshfield’s Employment, Pensions and Benefits team based in Hong Kong. She has a broad range of experience advising employers on both contentious and non-contentious employee matters throughout the Asia-Pacific region.


 

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.

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