Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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If you run a small business, you’ve probably had that tricky conversation at some point: an employee lets you know they’ve booked an “elective” procedure (anything from a knee scope to a scheduled hernia repair), and they’ll need time off to recover.
Your first thought might be practical: how long will they be away, and how do you cover the work? Your second thought is often legal: can elective surgery be taken as sick leave, or should it come out of annual leave?
In New Zealand, sick leave isn’t just for surprise illnesses. In the right circumstances, planned (or “elective”) surgery can still qualify as sick leave - but the key is understanding what sick leave is legally for, what evidence you can request, and how to handle the process fairly and consistently.
Is Sick Leave For Elective Surgery Allowed In New Zealand?
Yes - time off for elective surgery can be legitimate sick leave under New Zealand employment law, as long as the employee is unfit for work and has sick leave available.
Under the Holidays Act 2003, sick leave is available when an employee is:
- sick or injured; or
- needs to care for a dependant who is sick or injured (often called “sick leave for caregiving”).
Planned surgery and recovery will often fall within “sick or injured”, because the employee may be medically unfit to work before and/or after the procedure.
The word “elective” can be misleading. It often just means the surgery is scheduled ahead of time (as opposed to an emergency), not that it’s optional in a casual sense. Many elective procedures are medically recommended and genuinely necessary for the employee’s health and ability to work.
So the real question for you as an employer isn’t “is it elective?” It’s:
- Is the employee unfit for work due to sickness, injury, or a related medical procedure and recovery?
- Do they have sick leave entitlements available?
- Do you have reasonable evidence if you’re requesting proof?
If the answer to those is “yes”, it’s generally appropriate to treat the absence as sick leave.
What Evidence Can You Ask For (And When)?
This is where employers often get caught out. You want to do the right thing, but you also need to manage staffing, payroll, and leave balances responsibly.
Under the Holidays Act, you can request “proof of sickness or injury” in these common situations:
- If the employee is off sick for 3 or more consecutive calendar days (including weekends and non-work days), you can ask for medical evidence.
- If the employee has been off for fewer than 3 consecutive calendar days, you can still request proof - but if you do, you generally need to pay the reasonable cost of getting it (for example, a GP consult fee).
For elective surgery, many employees will proactively provide evidence, such as:
- a medical certificate confirming they’re not fit for work for a certain period; or
- a letter confirming a procedure date and recovery timeframe; or
- a discharge summary that includes a recommended period off work.
Be Careful With “Details”
It’s usually reasonable to ask for confirmation that they’re unfit for work and for how long. It’s not usually necessary (or appropriate) to request a detailed diagnosis or the specifics of the procedure.
Remember: medical information is sensitive personal information, and how you handle it is tied to your privacy obligations. If you collect and store medical certificates (even just as attachments in an email thread), it’s smart to have a clear Privacy Policy and internal process for who can access that information.
Should You Require Annual Leave Instead Of Sick Leave?
This is a common pressure point for small businesses. You might think: “They chose to book this surgery - so shouldn’t they use annual leave?”
In many cases, the answer is no. If the employee is unfit to work due to medical treatment or recovery, and they meet the eligibility requirements, sick leave is generally the correct leave type.
Trying to force annual leave instead can create legal risk, particularly if:
- the employee has sick leave available; and
- they can provide medical evidence that they’re not fit for work; and
- you treat their request differently from how you treat other sick leave requests.
That said, there are still situations where annual leave may come into play, for example:
- They’ve run out of sick leave and want to take annual leave to cover the time off.
- The time off isn’t because they’re unfit for work (for example, they want time off to attend appointments but are otherwise able to work, and flexible work isn’t possible).
- They request annual leave because they’d prefer to save sick leave for unexpected illness.
Where businesses get into trouble is when they treat “elective surgery” as a separate category with a blanket rule like “that’s annual leave only”. In practice, you should treat it like any other medical absence: assess fitness for work and available entitlements.
If you’re reviewing leave clauses and want to avoid confusion later, this is often a good time to check whether your Employment Contract and policies clearly set out how medical evidence, sick leave, and unpaid leave requests are handled.
How To Handle The Request Fairly (Without Losing Control Of Your Roster)
Even when sick leave for elective surgery is legitimate, you still need to run your business. The goal is to support the employee and make sure you’ve got a clear, consistent process.
1) Ask For Notice And A Recovery Estimate (Where Possible)
Elective surgery is usually planned in advance, which means you can often get early notice. You can encourage employees to tell you as soon as they can, so you have time to plan coverage.
It’s reasonable to ask for:
- the expected first day off work;
- the anticipated return-to-work date (even if it’s an estimate); and
- whether they may need a phased return (reduced hours or light duties).
Keep it practical and focused on work capacity - not the medical details.
2) Confirm What Leave Will Apply
Once you have enough information, confirm in writing:
- the leave type (sick leave, annual leave, unpaid leave, or a combination);
- how many days of paid sick leave they currently have available; and
- what happens if recovery takes longer than expected (for example, moving to annual leave or unpaid leave once sick leave is exhausted).
This avoids misunderstandings and helps you manage payroll accurately.
3) Consider Temporary Adjustments Or Alternative Duties
Sometimes an employee may be medically fit to do some work, but not their normal role (for example, they can do admin tasks but not heavy lifting).
If you can reasonably accommodate light duties or temporary adjustments, it’s often worth considering. It can reduce absence time and support a smoother return.
Just be careful not to pressure the employee to return before they’re fit, and make sure any changes are agreed and documented.
4) Be Consistent Across Your Team
Consistency is one of the biggest legal “safety nets” in employment. If you treat one employee’s planned surgery as “not real sick leave” but accept another employee’s medical leave without question, you increase the risk of a grievance (even if you didn’t intend to be unfair).
A simple internal checklist and a clear leave policy can go a long way here.
Common Risk Areas For Employers (And How To Avoid Them)
Most disputes about sick leave for elective surgery aren’t about the law itself - they’re about poor communication, unclear expectations, or inconsistent decision-making.
Risk 1: Treating Elective Surgery As “Not Sick Leave” By Default
As we covered above, elective doesn’t mean “not medically necessary”. If the employee is unfit for work, it’s usually appropriate to treat it as sick leave (if they have entitlements available).
What to do instead: focus on fitness for work, evidence, and leave balances.
Risk 2: Asking For Too Much Medical Information
You’re entitled to evidence that they’re unfit for work. You’re not entitled to a full medical history.
What to do instead: ask for a medical certificate confirming unfitness for work and the expected duration, and store it securely with limited access.
Risk 3: Mishandling Pay, Deductions, Or Leave Accrual
If sick leave runs out, employers sometimes make quick decisions like deducting pay, forcing annual leave, or changing hours without proper agreement. That’s where things can escalate quickly.
What to do instead: if the employee has no paid leave left, discuss options (annual leave, unpaid leave, or a variation to work arrangements). If you need to adjust their hours longer-term, approach it carefully - changing hours can become a contract variation issue. If you’re considering reduced hours for operational reasons, it’s worth reading about reducing staff hours to understand the consultation and agreement expectations.
Risk 4: Not Having Clear Workplace Policies
If your policies are vague, managers often “wing it” - and that’s when inconsistency happens.
What to do instead: build out a simple set of workplace rules covering leave requests, medical evidence, privacy, and return-to-work expectations. Many businesses handle this through a workplace policy suite or a staff handbook approach, depending on size and complexity.
Practical Steps: A Simple Process You Can Use In Your Business
Here’s a straightforward, small-business-friendly approach you can apply when an employee requests sick leave for elective surgery.
Step 1: Get The Request In Writing
This can be as simple as an email confirming:
- the surgery date (or first day off);
- the expected timeframe off work; and
- whether they’re requesting sick leave (and/or annual leave).
Step 2: Check Sick Leave Eligibility And Balance
Confirm whether the employee is entitled to sick leave under the Holidays Act (for example, they have met the 6-month eligibility threshold) and what their available balance is.
If you employ casual workers or staff with irregular patterns, eligibility and entitlements can get confusing fast. In those cases, it helps to understand casual workers’ leave entitlements so you’re applying the right rules.
Step 3: Decide Whether Medical Evidence Is Required
If they’ll be away for three or more consecutive calendar days, you can request a medical certificate.
If it’s fewer than three days and you still want proof, consider whether you’re willing to pay the reasonable cost. Also ask yourself whether it’s necessary - for planned surgery, employees usually have evidence anyway.
Step 4: Confirm Leave Approval And Pay Arrangements
Send a short written confirmation that covers:
- approved sick leave dates (or “from X date until medical clearance”);
- what happens if the absence extends beyond available sick leave;
- any expectations about keeping in touch (for example, an update before the expected return date).
Step 5: Manage The Return-To-Work Safely
When the employee is ready to come back, you may need to confirm they’re fit for work, especially if the role involves safety-sensitive duties or physical work.
From a health and safety perspective, you have duties under the Health and Safety at Work Act 2015 to provide a safe workplace. That includes making sure an employee returning after surgery isn’t put into work that could cause harm to themselves or others.
If there’s a performance or capability issue after they return (for example, ongoing inability to complete inherent requirements of the role), that should be managed carefully and fairly - ideally with advice - because medical-related capability issues can overlap with discrimination risk and procedural fairness obligations.
Key Takeaways
- Sick leave for elective surgery can be legitimate in New Zealand if the employee is unfit for work due to a medical procedure and recovery (or related sickness/injury) and has sick leave available.
- “Elective” usually means scheduled, not optional - avoid blanket rules that elective procedures must be annual leave.
- You can request medical evidence after 3 consecutive calendar days of sickness or injury; for fewer than 3 days you can still request proof, but you generally need to cover the reasonable cost.
- Keep medical information minimal, confidential, and securely stored, and make sure only the right people have access.
- Have a clear, consistent process for managing medical leave so managers don’t make ad-hoc decisions that create legal risk.
- If sick leave runs out or work capacity changes long-term, discuss options (annual leave, unpaid leave, temporary duties) and document any agreed changes properly.
If you’d like help updating your employment documents or setting up a clear leave process that protects your business, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
