To trust or not to trust – requiring proof of illness
Wednesday, 15 July 2026
Susan Hornsby-Geluk is managing partner at employment law firm Dundas Street and a regular opinion contributor.
OPINION: Proof of sickness is becoming a focal point in wider debates about productivity, workforce participation, public spending, and trust.
Last week, German Chancellor Friedrich Merz announced a proposed new law that would require employees to provide a doctor’s certificate from the first day of illness and attend appointments in person rather than obtaining certification remotely. The reforms are intended to reduce workplace absences and improve productivity, with Merz arguing that Germany’s level of sick leave has become an economic concern.
The proposals have drawn sharp criticism from unions, which accuse Merz’s government of fostering a “culture of distrust”. Doctors have also reacted strongly warning that already stretched general practices could be overwhelmed by appointments sought primarily for administrative rather than clinical reasons.
Read more
While our Government does not appear to be considering similar changes to employee sick-leave entitlements, a discussion has emerged in relation to welfare and workforce participation which raises related issues.
At ACT’s recent annual conference, the party announced a proposal requiring all health and disability benefit assessments to be carried out by a pool of MSD designated doctors rather than an applicant’s usual GP.
The proposal responds to the growing number of New Zealanders receiving health-related benefits and is based on the view that greater independence and consistency are needed in medical assessments. According to ACT, reassessments would initially focus on mental-health-related grants issued after the pandemic, where much of the recent increase has occurred.
Although the German and ACT proposals arise in different contexts, both raise important questions about the use of medical evidence in decision making about entitlements – from when certification should be required to who should be responsible for providing it.
Fundamentally, both also appear to stem from a lack of trust in the reliability/authenticity of medical certification being provided by some claimants.
While not currently being considered by this government, if ACT is part of a coalition following the election, extending the proposal to an employment context could not be ruled out. This would obviously be deeply unpopular with employees and the unions, although these groups do not appear to be ACT’s target market. More objectively, however, such an approach is unlikely to be warranted or necessary.
New Zealand employment law already places significant weight on the provision of medical evidence.
Under the Holidays Act 2003, employers are generally entitled to require proof of illness if an employee has been absent for three or more consecutive calendar days and may require proof earlier if they agree to meet the employee’s reasonable costs of obtaining it.
Medical evidence is also central to decision making involving long-term illness or incapacity in employment. Before dismissing an employee on medical grounds, employers are generally expected to obtain adequate medical information, understand the likely duration of any incapacity and impact on the employee’s ability to perform their job, and assess whether alternatives to dismissal are reasonably available.
In practice, employers are reliant on this medical information to address questions about fitness for work, rehabilitation, accommodation, and workplace risk. Employers are unlikely to have the expertise to determine whether someone is medically capable of working. Doctors do.
At the heart of the debate is whether a person’s GP is the best person to assess their ongoing capacity for work, or whether that function should be carried out by an independent assessor.
Supporters of the proposal argue that independent assessments may provide greater consistency and remove pressure from GPs who have full waiting rooms. ACT leader David Seymour has also made the point that busy doctors can face pressure from patients seeking certification. There has also been criticism in recent years, largely from employers, that some GPs can appear to be advocating for their patients in this context.
However, critics question whether creating a separate assessment system would improve outcomes or merely add another administrative layer. Dr Luke Bradford, President of the Royal New Zealand College of General Practitioners, has noted that while there may be a subset of cases where independent review would be useful, most claims are legitimate and involve people who are genuinely unable to work because of serious illness, injury, surgery, or disability.
He has also questioned where the additional doctors required to support such a system would come from in an already stretched health system.
Going back to the German government’s proposal, there would be significant practical difficulties for employees if they were required to produce a medical certificate from day one of any sickness related absence from work. Not only may it be unnecessary for them to see a doctor from a clinical treatment perspective, but this would clog surgeries and potentially compromise their capacity to see the people who do actually require urgent treatment.
This approach may also, ironically, result in worse health outcomes for employees, where, for example, they are required to get out of bed and into town for an unnecessary assessment when they are feeling unwell with flu.
The number of New Zealanders receiving sickness and disability-related benefits has increased over the past decade, with mental health conditions accounting for much of the growth. Yet New Zealand's overall rate of sickness and disability benefit receipt remains broadly in the middle of the international range rather than being a significant outlier.
In an employment context it is difficult to tell whether more sick leave is being taken, given the trend of employees working from home and therefore the ability to mask this. However the statutory entitlement has been raised to 10 days per annum, and it does appear that more sick leave is being taken, particularly for mental health related illnesses.
This raises an important question as to how we should respond as a society. One option is to take an arguably punitive approach focussed on getting employees back to work as quickly as possible, well or otherwise. The other is to provide appropriate levels of support, in a context of trust, and to focus on whether the workplace environment itself is contributing to absenteeism.