Welcome to Arthritis New Zealand

Employment issues

 

Arthritis affects nearly 1 in 4 New Zealanders, adversely impacting labour market participation for thousands of people.

Employment issues

 

 

Musculoskeletal disorders (MSDs), such as arthritis, affect nearly 1 in 4 New Zealanders, adversely impacting the productivity and labour market participation of thousands of New Zealand workers. Research has shown that New Zealanders with arthritis are less likely to be employed than those without arthritis and many people with arthritis also have to move from full-time employment to part-time employment due to their arthritis, because of its impact on physical functioning (and psychological impacts due to pain). More than 50% of those with arthritis are of working age.

In September 2012 a new report, the Fit for Work Musculoskeletal Disorders and the New Zealand Labour Market, developed by The Work Foundation was released. This reveals that disability and chronic health conditions are two of the main obstacles to maintaining employment for millions of New Zealanders. Read the report.

Studies have demonstrated that workplace changes can reduce work disability from arthritis and can help to retain employment of those with arthritis. A supportive work environment such as those allowing adjusted flexible working hours, adjusted job demands, accessibility of workplaces and the presence of supportive co-workers and employers can all help to reduce withdrawal from the labour force by people with arthritis. Early clinical, policy and employment interventions can support job retention and a return to work.

We have both Information for Employers and Information for Employees to help reduce the barriers to employment for people with arthritis.

Information for Employees


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.

Physiotherapy NZ have information that may be of assistance to you here.

 

1 – Am I obliged to tell my employer that I have arthritis?

You may feel worried or unsure about telling people at work about your arthritis. You are not required to disclose a health problem or disability to your employer unless it could cause health and safety problems in the workplace. However, it can be beneficial to inform your employer of your health condition. The sooner you talk to your employer about your arthritis, the earlier it can make reasonable adjustments to your workplace, and the easier it could be for you to manage work alongside your symptoms.

If you decide to tell your employer about your illness, you can ask them to treat the information as confidential. In that case, your employer should only share your personal health information with your colleagues with your permission and only if it would not result in unjustifiable disadvantage to you.

Whether or not you disclose your arthritis at work, it is important to maintain regular communication with your employer in order to comply with your obligation of good faith. Explain to your employer what would help you to perform your job more efficiently. Over time your needs may change. Communication between you and your employer should help avoid any negative assumptions being formed by your employer in relation to your arthritis. It will also help your employer to accommodate your needs.

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 does my employer have in relation to my arthritis?

In addition to the mutual obligation to treat an employee in good faith, your employer owes you additional obligations under the Human Rights Act. 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. This means that, while may think of yourself as ill rather than disabled, having a long-term illness that adversely affects daily life may be regarded as a disability for the purposes of anti-discrimination law.

Under the Human Rights Act, your employer is prohibited from treating you less favourably than others by reason of your arthritis, and is obliged to reasonably accommodate your arthritis. This means your employer is required to provide special services or facilities that enable you to perform your duties satisfactorily, where it is reasonable to expect the 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 disability, this could include:

  • special travel arrangements to and from your 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 employer’s obligation to you will be determined on the merits of your unique case. Some exceptions apply: see below Is it reasonable for my employer to accommodate my disability? and My arthritis could cause harm to myself 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 for my employer to accommodate my disability?

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

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

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 shits 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 arthritis could cause harm to myself or others in the workplace. What rights do I have?

Every employer owes a duty to ensure the safety and health of its employees and to provide a safe working environment. This means that your employer may also treat you differently on account of your disability if the working environment or duties are such that your arthritis means that you could only be employed with a risk of harm to yourself or others, and it is not reasonable to take that risk. However, this does not apply if your employer could, without unreasonable disruption, take reasonable measures to reduce any health and safety risk that your arthritis poses to a normal level.

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

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 – Applying for a job

The Human Rights Act protects the interests of people who have a disability from discrimination in the workplace. Except in specific circumstances, potential employers should not ask health-related questions of you. You are not required to disclose a health problem or disability to your employer or future employer, 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.

However, disclosing your arthritis and its effect on your ability to work lets your employer or future employer know what they need to do to make reasonable adjustments to the recruitment process or to support you in the workplace.

6 – Do I have to give my employer a doctor’s certificate as proof of my illness?

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

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

You may use sick leave to attend medical appointments in relation to a chronic arthritis. All employees in New Zealand are entitled to five days’ sick leave per year after they’ve worked for six months for one employer. Remember to check the terms of your employment agreement, because it may provide more than this. 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. Again, your employment agreement may allow you to carry over more than this.

Once you have used up all your sick leave and annual leave, your employer is not obliged to provide further leave for medical appointments. However, they are obliged to be reasonable and act fairly towards you. The more information you provide your employer about your medical situation, the more likely they are to be understanding and allow you flexibility to leave the workplace.

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.

Information for Employers

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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