All employees are entitled to sick leave if:
- they have six months’ current continuous employment with the same employer, or
- they have worked for the employer for six months for:
- an average of 10 hours per week, and
- at least one hour in every week or 40 hours in every month.
For each 12-month period after meeting the above, each employee gets at least five days’ sick leave. If in any year the employee doesn’t meet the criteria, then they don’t get any new sick leave entitlement, but can use their sick leave balance which may have carried over. An employee may re-qualify for sick leave as soon as they meet the criteria.
Sick leave entitlements are not pro-rated in any way. For example, even if a part-time employee only works three days a week, they still get five days’ sick leave a year and can accumulate up to 20 sick days a year.
Telling your employer that you want sick leave
You need to tell your employer as soon as possible, that you are sick or injured and you want to take sick leave. A phone call is the best way to let your employer know, but your workplace may have its own systems to tell them you are sick.
Payment for sick leave
Payment for sick leave is only made when it is a day that the employee would otherwise have worked if they were not sick. If it was not an otherwise working day (eg if the employee was on unpaid leave or the employee fell sick on a day that they weren't rostered to work) then the employee would not be entitled to be paid sick leave.
Payment for sick leave is at the rate the employee would ordinarily be paid on the day leave is taken ie relevant daily pay (or their average daily pay where applicable).
For example, if James normally works 8 hours Tuesday to Friday and four hours on Saturday and is sick on Saturday, the employer should pay James his relevant daily pay for the sick day, ie four hours.
If relevant daily pay is used for the calculation, the payment must include overtime if the employee would have worked overtime on the day if they hadn’t been sick.
For example, Claire’s employment agreement specifies an hour for lunch but Claire, at her employer’s request, usually takes only half an hour for lunch and gets an extra half hour payment each day. If Claire is sick her sick leave payment includes the extra half hour she is normally paid for even though it isn’t in her employment agreement.
If the employee works continuously but has an irregular pattern, sick leave is payable if the employee was rostered to work on the particular day leave is taken, or could have expected to be rostered. The sick leave is paid at the employee’s relevant daily pay or average daily pay.
Payment for sick leave is made in the normal pay cycle.
The Holidays Act 2003 describes sick leave entitlement in terms of days, and doesn’t divide it into smaller units, such as part days or hours. This means that if an employee works for part of the day and then goes home sick, this may be counted as using a whole day of sick leave, no matter how much of the day the employee has worked before going home. However, the employee and employer can agree to describe the entitlement in such terms as hours or part days if this is better for the employee. For example, if an employee worked a half day then went home sick, their employer could agree to only deduct a half day of sick leave (which would be better for the employee). Payment for this half sick leave day would be half of their relevant daily pay or average daily pay.
Your employment agreement can’t give you less sick leave benefits than you get under the Holidays Act 2003, but it can give you more. Examples of the better sick leave benefits some employment agreements or workplaces have are:
- sick leave is not capped or is capped at higher than 20 days
- the employee gets 10 days sick leave each year (rather than five).
You should look at your employment agreement and workplace policies about sick leave.
If you have run out of sick leave and you’re sick or injured (or your spouse, partner or dependant is sick or injured) you can ask your employer to give you sick leave in advance, use some of your annual holidays, or you can ask to take unpaid leave.
If an employee (or their spouse, partner or dependant) falls sick before starting scheduled annual holidays, the employee can take the portion of annual holidays they’re sick for, as sick leave.
If an employee (or their spouse, partner or dependant) falls sick when they have already started a period of annual holidays, they can change the days they are sick to sick leave days rather than annual holidays but only if their employer agrees.
The employer can ask the employee to prove the sickness before allowing them to change their annual holidays for sick leave.
Any unused sick leave at the end of a 12-month period can be carried over and added to their next year's entitlement.
For example, after 6 months employment, an employee gets at least 5 days’ sick leave. If the employee doesn’t use any sick leave during the following 12 months, they will still get another 5 days’ sick leave on their entitlement date, which will give them a total of 10 days’ sick leave.
The maximum amount of sick leave that can be accumulated under the Holidays Act 2003 is 20 days. The employer and employee can agree that sick leave can accumulate to more than 20 days; they can do this in the employment agreement or through workplace policies.
Unused sick leave can’t be cashed-up or be part of any final payment to the employee when they leave, unless this is in the employment agreement.