Ed Note: At this time of year, you might find yourself with an increased number of employees taking sick leave.
Under the Fair Work Act 2009 (Cth), an employee is entitled to take their accrued paid sick leave if they:
- are unfit for work because of a personal illness or injury; and
- provide their employer with evidence (e.g. a medical certificate or statutory declaration) that would satisfy a reasonable person that sick leave is being taken because an illness or injury renders them unfit for work.
A modern award or enterprise agreement may dictate the evidence your employees are required to give you, and in what circumstances. The FW Act stipulates that, when an employer exercises their right to request evidence, they must do so reasonably.
But what are your rights if an employee refuses to provide a medical certificate, or provides a certificate that seems inauthentic or does not give you sufficient information?
Read on below for some advice from Charles Power.
Until next time…]
When and how you can request medical information from employees
Generally, it would not be considered reasonable to request a medical certificate for a one-off absence unless you reasonably suspect that the employee is, in fact, fit for work.
Where you have reasonably requested a medical certificate but you are unconvinced of its accuracy or authenticity, you can seek clarification from the doctor who signed it – but you will need compelling evidence to challenge it. If the doctor confirms the information on the certificate, don’t take the issue further.
If it’s reasonable to request a medical certificate, you can withhold pay for sick leave until the certificate is provided. However, you cannot simply refuse to pay sick leave because you don’t believe the evidence the employee has supplied as proof that they are unfit for work.
If you wish to request further information about an employee’s health or medical history beyond what is provided in a basic medical certificate, you need to frame the request around a lawful reason for obtaining this information, i.e. to determine whether the employee can perform the work without posing safety risks to themself or other employees, or to develop measures that might help the employee satisfactorily perform their role.
If you do need to request medical information, you should suggest one of the following courses of action to the employee:
- that they obtain a written medical report from their doctor and consent to providing you with a copy; or
- that they authorise their doctor to phone you directly and that you will make a record of the discussion and provide it to the employee.
Remember that you cannot do either of these things without the employee’s consent. Written consent is preferable, as doctors often require signed medical authority from patients before they will release medical reports or discuss a patient’s condition.