Hung-over can claim sick leave

Last updated 10:00 21/04/2012

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OPINION: Q: An employee phoned this morning saying that he was sick and couldn't come into work. I know for a fact that he was drinking heavily last night and I think he's just hung-over. What can I do about it?

A: While some may think that an employee who takes sick leave to recover from a bad hangover is committing an act of misconduct, this is not the case. An employee who is hung-over is just as entitled to claim sick leave as an employee with the flu. Your employee may even admit they are hung-over, without comeback.

Parliament didn't include a definition of the term "sick" in the Holidays Act 2003.

When the Court of Appeal was last asked to define the meaning of "sick" it held that "sick" means "unfitness for health reasons of any nature and however caused".

While there may be a moral distinction between self-induced sickness such as a hangover and other forms of sickness or injury, there is no legal distinction.

Furthermore, "sickness" caused by a hangover is a legitimate reason for a GP to provide the employee with a medical certificate.

It may be cold comfort, but by taking sick leave your employee is probably doing the "right" thing. Most workplaces deem reporting to work while under the influence of alcohol to be serious misconduct.

An employee with a thumping headache and the "dry horrors" is still under the influence of the alcohol in their system. They should not be at work in that state.

Some employers, such as airlines, have alcohol policies that class drinking in the eight hours preceding work to be serious misconduct. Employers whose employees work in safety sensitive areas, or around hazardous materials, should consider introducing such policies.

Your employee has a duty to be truthful. If hung-over, they cannot say they are ill "with the flu".

Lying to one's employer is an act of misconduct which could form the basis for disciplinary action, and even justify dismissal.

Craig Mundy-Smith, Senior Associate, Bartlett Law Barristers and Solicitors.

A: If this is an irregular occurrence, "suck it up" and let it pass. You do not want a hung-over person at work and everyone has the right to go celebrate once on a while.

The bigger issue is if this is a recurring problem, and whether this is an organisational issue or specific to an employee? If it's a specific employee, I would be having stern words with them and noting it on their file.

If taking sickies is commonplace in your organisation, this could be a sign of lack of clear leadership and direction on your part. As a leader it's your job to create a motivating and stimulating work environment where people want to come to work.

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Mark Robotham – SME business adviser. Website: growthmanagement.co.nz

- BusinessDay

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