Anita Lam is a consultant, head of employment, Hong Kong, at Clifford Chance. She practises across all areas of employment law, with a particular focus on contentious employment, discrimination and data privacy disputes.
As Chinese New Year draws near, many employees will be planning to spend the holiday with their loved ones. Unfortunately, for some businesses, abuse of sick leave is particularly rife during festive seasons.
When an employee is genuinely sick, granting sick leave is, of course, necessary and legitimate. However, difficulty arises when there is no clear reason for repeated absence. In some situations, an employee may be suffering from an underlying condition. The employee may, however, simply be malingering, or have a case of what we could call “festive holidays syndrome”.
Typically, this undue absence occurs on a Monday or Friday, or immediately before or after a public holiday.
On average, 3.5 per cent of business time is lost through sick leave each year. As such, the cost of absenteeism due to sick leave abuse can be substantial, including the hidden costs of having additional cover and use of temporary labour. More importantly, abuse of sick leave has an impact on the morale of those employees attending work.
The Legal Risks
Depending on whether the absence is authorised or unauthorised, short term or long term, and whether there is any underlying medical condition at play, legal issues may arise when employers manage sick leave.
When handling absenteeism, employers should ensure they meet legal standards and company policy on sick leave, maternity leave and work injury compensation, and observe any restrictions on terminating contracts during these periods. They should also ensure they steer clear of any discrimination against those with disabilities.
In addition, employers should adhere to the Personal Data (Privacy) Ordinance and refrain from requesting what the Hong Kong labour department refers to as “excessive information” to prove the legitimacy of the sick leave.
Absenteeism can be tackled with an effective absence management policy, which should be clearly explained.
The first step in combating abuse of sick leave is to have a clearly defined policy laying down procedures and setting out roles and responsibilities for employees, managers and HR officers. The procedures for dealing with unacceptable intermittent absences should also be laid down.
Accurate information is the foundation for control and absence management. As such, systems must be introduced to provide accurate statistics on absenteeism and alert HR or compliance when the level of intermittent absences becomes unacceptable. The information must suit management’s needs and be timely.
Managers and HR officers will have the primary responsibility of dealing with absenteeism. Every manager should know the level and cost of absence in his or her department and be able to compare those figures with other departments. Employers should invest in training line managers to handle this area of their responsibility.
The “return to work interview” – which identifies the cause for intermittent absences – is the cornerstone of effective absence management, and consistency in treatment of staff is key. The line manager must conduct a return to work interview with each employee whose intermittent absences have reached an unacceptable level. This minimises the risk of legal issues, and fosters good communication with the workforce.
When employees know they will have to explain why they have not been at work, they are more likely to ensure their absences are genuine.
If the employee refuses to provide information regarding his or her illness, the manager should explain that the purpose of obtaining a medical report is to enable due consideration of reasonable accommodation to be given to him or her, and to avoid discrimination.
Mental health issues can also cause absence. Instituting an employee assistance program or counselling facility may help to improve attendance in this regard.
Where discipline is appropriate, it should be administered fairly and consistently across all sections. Failure to do so will undermine the policy, as employees will be able to point out unfair inconsistencies. This is important in terms of employee relations and avoiding claims of discriminatory treatment.
This article appeared in the Classified Post print edition as Combating absenteeism during festive seasons.