Information for Employers

People with arthritis can have pain and difficulty moving around. It can cause loss of strength and grip, stiffness and tiredness. But these symptoms can generally be well managed.

For most people, arthritis is chronic. As yet, there is no cure for the condition but it can be managed successfully using a combination of medication, exercise, physiotherapy, and with the ongoing support of healthcare professionals.

 

1 – Is my employee obliged to tell me that they have arthritis?

Employees may feel worried or unsure about telling people at work about your arthritis. An employee is not required to disclose a health problem or disability to you unless it could cause health and safety problems in the workplace. If an employee discloses their medical information to you in confidence, you are bound to respect that confidence. This means that you may only share an employee’s personal health information with other people in the workplace with the employee’s permission and only if it will not result in unjustifiable disadvantage to that employee.

When an employee has disclosed to you that they have arthritis, it is important to maintain regular communication with that employee in order to comply with your obligation of good faith. Ask your employee what would help them to perform their job more efficiently. Over time your employee’s needs may change.

When an employee has disclosed to you that they have arthritis, it is important to maintain regular communication with that employee in order to comply with your obligation of good faith. Ask your employee what would help them to perform their job more efficiently. Over time your employee’s needs may change.

In Lawrie v Air Liquide New Zealand Ltd (2013) the Employment Relations Authority found that an employer was justified in dismissing an employee who was absent from work for 62 days within an employment period of 13 months because the employee was not forthcoming with medical information. The employee suffered depression, but did not inform the employer of this until he had been in employment for 10 months, at which time he had been absent for more than 15 days. His employment agreement allowed 8 days’ sick leave per year. The Authority noted that providing that information to the employer that would have assisted the employer in making a decision as to how to deal with the employee’s absences from work.

2 – What legal responsibilities I owe to an employee who has arthritis?

In addition to the mutual obligation to treat an employee in good faith, employees owe additional obligations under the Human Rights Act to employees with a disability. The definition of “disability” in the Human Rights Act includes physical disability or impairment, physical illness, and any other loss (or abnormality) of physiological or anatomical structure or function. Arthritis is a condition that, in many cases, has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities, and may be regarded as a disability for the purposes of anti-discrimination law.

Under the Human Rights Act, an employer is prohibited from treating an employee less favourably than others by reason of a disability, and is obliged to reasonably accommodate an employee’s disability. This means you are required to provide special services or facilities that enable an employee with arthritis to perform their duties satisfactorily if it is reasonable to expect an employer to provide those services or facilities. The Human Rights Act does not specify what special services or facilities an employer must provide. However, depending on your employee’s disability, this could include:

  • special travel arrangements to and from their place of work;
  • specially designed chairs, desks or work stations;
  • a secretary or assistant;
  • a palliative or therapeutic device; or
  • an auxiliary aid.

For people with mild or moderate arthritis, the earlier adjustments in the workplace are made, the easier it will be for them to remain productive.

What amounts to reasonable accommodation depends on a number of factors. Your obligation will be determined on your employee’s unique case. Some exceptions apply: see below Is it reasonable to accommodate my employee’s disability? and My employee’s arthritis could cause harm to them or others in the workplace. What rights do I have?

In Atley v Southland District Health Board (2009), accommodation of an employee’s disability was also consistent with the employer’s contractual obligation. The employee’s collective employment agreement provided that the employer would “ensure disruption, personal health effects and fatigue associated with shift work are minimised for the group of workers involved”. Employees should check their employment agreements when considering what duties they and their employers owe one another.

3 – Is it reasonable to accommodate my employee’s disability?

There are exceptions in the Human Rights Act to an employer’s duty to accommodate an employee with a disability. You may treat an employee differently on account of their disability if they can only perform the duties of their position satisfactorily with the aid of special services or facilities where it is not reasonable to expect you to provide those services or facilities.

Some other exceptions apply. Every case is different and your situation will be considered on its own facts.

In Atley v Southland District Health Board (2009) an emergency department nurse was required to work rostered night shifts. She suffered bipolar disorder, and began to experience difficulties at work. A medical professional confirmed that the employee’s condition was not compatible with working intermittent night shifts, and suggested that a mixture of morning and afternoon shifts instead of night shifts would allow her to continue her work in the emergency department. Several nurses offered to cover her night shifts. The Employment Relations Authority found that limiting the employee’s roster to day and afternoon shifts, and having other employees cover her night shift duties, would not be unreasonable disruption for the employer.

4 – My employee’s arthritis could cause harm to them or others in the workplace. What options do I have?

You may also treat an employee differently on account of their disability if the working environment or duties are such that their arthritis means that they could only be employed with a risk of harm to themselves or others, and it is not reasonable to take that risk. However, this does not apply if you could, without unreasonable disruption, take reasonable measures to reduce any health and safety risk that your employee’s arthritis poses to a normal level.

Some other exceptions apply. Every case is different and your situation will be considered on its own facts.

In Wilson v Sleepyhead Manufacturing Co Ltd (1992) an employer dismissed an employee who had an epileptic seizure at work. He had had one other seizure at work a few weeks earlier. The seizure took place on the work floor while machinery was operating. The employer was concerned at the danger to the employee, and to other employees, should he have another seizure without warning, near moving machinery or while working at a height. The Employment Tribunal found that the employer’s concern about safety was justified, and that dismissal on notice was within the range of justifiable actions that the employer could have taken

In Lealaogata v Timata Hou Ltd (2013) an employee with severe arthritis of both knees and heart problems was dismissed from employment. The employee’s arthritis prevented him from heavy lifting, any fast activities, walking long distances or going up or down stairs. This lack of mobility made him unable to undertake the essential duties of his job, including tracking and restraining clients (who all had intellectual disabilities). His employer was concerned about his health and wellbeing and the safety of the people he was supporting.

The employer considered there was no realistic prospect of any alternative duties being available to the employee. The employer decided to terminate his employment after a fair and extensive process (seven months’ long). The Employment Relations Authority found that the employee’s inability to undertake the full range of duties of his position compromised his own safety and that of his co-workers. The employer could not, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

5 – Recruiting

The Human Rights Act protects the interests of people who have a disability from discrimination in the workplace. Except in specific circumstances, employers should not ask health-related questions of prospective employees. A prospective employee is not required to disclose any health problem or disability to you, unless it could cause health and safety problems.

In Imperial Enterprises Ltd v Attwood (2003) the Employment Court found that a question in a job application form that asked the applicant to disclose any medical conditions was discriminatory on the grounds of disability and therefore breached the Human Rights Act.

When a prospective employee discloses their arthritis and how it affects their ability to work, a prudent employer should make inquiries as to what reasonable adjustments the employer can make to the recruitment process or to support that individual in the workplace.

6 – Can I ask my employee for a doctor’s certificate to prove their illness?

An employer may request a medical certificate at any time. You must inform your employee as early as possible that a medical certificate is required, and pay reasonable expenses in obtaining the certificate.

 

7 – Can I leave the workplace for doctor’s appointments?

An employee may use sick leave to attend medical appointments in relation to a chronic arthritis.

In Labour Inspector v Bakehouse investments Ltd t/a Westside Bakehouse (2004) the Employment Relations Authority determined that an employee who had to go for regular checkups in relation to a chronic health condition could claim sick leave for the time spent going to the medical appointments.

All employees in New Zealand are entitled to five days’ sick leave per year after they’ve worked for six months for one employer. Sick leave may be carried over from one year to the next. However, an employee may only carry over a maximum of 15 days’ sick leave, which means that an employee is only entitled to a maximum of 20 days’ sick leave entitlement in any one year. If the terms of an individuals’ employment agreement provide more than these statutory entitlements, the terms of the agreement apply over and above the statutory entitlement.

Once an employee has used up all their sick leave and annual leave, you are not obliged to provide further leave for medical appointments. However, employees are obliged to be reasonable and act fairly towards employees. It is important to seek information from your employee about their medical situation, in order to fully understand their needs and how you can reasonably accommodate their disability.

8 – Where can I get further advice and information?
  • Arthritis NZ phone 0800 663 463.  Ask to speak with an Arthritis Educator.
  • Ministry of Business, Innovation and Employment (formerly the Department of Labour). Telephone +64 4 915 4400www.dol.govt.nz
  • Human Rights in New Zealand www.hrc.co.nz
  • National Equal Opportunities Network –www.neon.org.nz
  • Office of the High Commissioner for Human Rights www2.ohchr.org

Disclaimer
This publication is a general guide is necessarily brief in nature. It does not constitute an authoritative description of the law, nor does it replace professional legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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