Employer Rights Regarding Employee's Taking Leave

Posted 19 October 2022 by Mike Johnson leave, annual leave, Sick leave, unpaid leave, bereavement leave, acc;

Employer’s right in regard to Employee’s taking leave

We have been asked to advise on a number of situations, over the last couple of weeks, where an Employer has approved an indefinite amount of leave, often unpaid, because they felt they had no other choice.

To be clear upfront, an Employee does not have the right to dictate when they take annual or unpaid leave, and certainly should not be given open-ended leave.

You, as the Employer, legally, have the following rights when it comes to leave (unless their IEA gives them more beneficial leave terms):

• Annual Leave

  • Annual Leave is taken by mutual agreement only.
  • While you should not unreasonably deny the leave request, you have a right to deny it for any valid business or operational reason.
  • Where agreement cannot be reached on days to take leave, you can require the employee to take leave at a date set by you, giving 14 days’ notice.
  • Employees are not entitled to take any leave until they have completed 12 months of service with you. You can approve leave in advance, using accrued leave, but you do not have to.
    
    

• Sick Leave

  • An Employee can take sick leave where they are sick or someone dependent on them is sick (it does not need approval)
  • Employees are only entitled to be paid for this sick leave after six months of service and then up to 10 days per annum. Casual employees may also have some entitlement.
  • Leave due to sickness before this, or in excess of entitlement, is unpaid, and technically breaches the employment agreement.
  • Employees are still obligated to be in contact with you during sick leave.
  • Dealing with sick leave is all about managing excessive absenteeism and identifying patterns.
    
    

• Bereavement Leave

  • Employees are only entitled to this leave after six months of service. Depending on the circumstances, you can approve paid bereavement leave before this entitlement, or approve unpaid leave, but you do not have to.
  • Bereavement Leave must be approved by you (by implication this includes its duration) before the employee takes this time off. While you must be sensitive in this situation, employees cannot simply tell you that they are leaving town or taking time off due to a bereavement.
  • Employees are entitled to 3 days bereavement leave for the death of a parent, child (including miscarriage and stillbirth), partner, spouse, grandparent, grandchild, brother, sister or parent in law.
  • Employees are entitled to 1 day’s bereavement leave for the death of any other person where you, the employer, accept that the employee has suffered a bereavement.
  • You are entitled to be given evidence of such bereavement
  • You can approve additional leave, either paid or unpaid, if you wish but you are under no obligation to do so, so long as you are being reasonable.
  • Employees should remain contactable during this time
    
    

• ACC Leave

  • Employees should provide you with medical certificates as necessary, covering all periods of absence due to injury.
  • Employees must remain contactable during their absence, working with you and ACC to work toward a return to work.

• Unpaid Leave

  • You may approve extended unpaid leave if you deem it appropriate and/or necessary, after agreeing a date on which the employee will return to work.
  • However, unpaid leave is an interruption in the employee’s employment, meaning that they are not employed by you (or accruing entitlements) during this period, and have no obligation to stay in contact with you.
  • You have no obligation to approve unpaid leave and the employee cannot dictate this to you. If they wish to insist, the only way they can do that is by resigning.
    

We recognise that many of you just want to do right by your staff, and we commend that. However, you still have rights and an obligation to manage staff leave to ensure the smooth operation of your business. Otherwise, you can find yourself with a long-term absent employee whose position you cannot attempt to fill.

If you have any further questions and/or require assistance in managing staff leave, please contact us.

 

Essential HR are here to help.  For ongoing help call us on – 03 3650532, or you can contact Mike directly on 027 2808546 or mike@essentialhr.co.nz.

I’m happy for you to pass this on to others.

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