By Alana Paterson, Special Counsel, of HopgoodGanim Lawyers.
With cold and flu season upon us, employees will be seeking to access accrued paid personal/carer’s leave (incorporating sick leave). Employers are often dissatisfied with the notice given by employees and the evidence provided to support the need for sick leave. We explore the requirements for employees to access paid sick leave under the National Employment Standards (NES) as well as some common issues employers have with the evidence provided.
What notice does an employee need to give?
An employee has to let their employer know that they are going to take sick leave. This must be done as soon as possible, and may even be after the leave has started if prior notice is not possible. This might include where an employee (or their immediate family member or household member) is in hospital. When giving notice of taking sick leave, an employee should also specify how long they think they will need to be away from work.
When can an employer request a medical certificate?
Employers can ask an employee to give evidence to confirm why they have been away from work at any time. This includes employees who may have only been absent for one day. An employee who doesn’t give their employer evidence when asked may not be entitled to be paid for their sick leave.
However, before requiring an employee to provide evidence of the need to take sick leave, employers should check their policies or enterprise agreements as they may specify when an employee has to give evidence to their employer and what type of evidence they have to give.
The NES don’t specify the type of evidence that needs to be given for sick leave. The NES simply provides that the evidence required needs to satisfy a reasonable person that the employee was genuinely entitled to take the leave. Generally, medical certificates and statutory declarations are examples of forms of evidence that most employers will accept.
Does an employer have to accept a medical certificate that says an employee is suffering from a “medical condition”?
Challenging the validity of a medical certificate is difficult to do. The employer must suspect there has been dishonesty on the part of the employee to challenge a medical certificate. For example, an employer successfully defended an unfair dismissal claim after an employee was dismissed for taking sick leave (with a medical certificate) after an annual leave application to attend a football match was denied by the employer. In many cases, a certificate which simply states that an employee is suffering from a “medical condition and is unfit for work” is sufficient, particularly when the absence is only for a day or two. However, employers must make these decisions on a case by case basis.
There is no requirement that the medical condition the employee is suffering from be detailed on the medical certificate. The Australian Medical Association’s Guidelines on Medical Certificates 2011 (revised 2016) (AMA Guidelines) suggest that a medical certificate include the:
- name of the medical practitioner;
- address of the practice;
- date of issue; and
- date(s) on which the employee (or member of their immediate family or household) is unfit for work.
There may be situations where employers may reasonably and lawfully require more detailed medical information from an employee, including where:
- there has been or will be an extended period of time away from work, or leave is required on a regular/ongoing basis;
- an employee is returning to work, or claims to have recovered, after an extended period of incapacity;
- workplace adjustments are required to accommodate persistent incapacity; or
- the employment is in a safety critical position or has statutory safety compliance requirements.
Can a pharmacist issue a medical certificate for personal/carer’s leave?
Pharmacists are able to issue medical certificates for personal/carer’s leave under the Fair Work Act to certify absences from work for personal/carer’s leave. They are unable to provide medical certificates for other types of leave such as parental leave etc. The professional bodies for pharmacists, the Pharmacy Guild of Australia and Pharmaceutical Society of Australia, have developed guidelines for pharmacists in issuing medical certificates.
The guidelines recommend that pharmacists limit the provision of certificates:
- for absence from work to their areas of practice and expertise, which is primarily:
- the supply, compounding or dispensing of medicines;
- the provision of professional pharmacy services, including advice on minor conditions and the effective and safe use of medicines; and
- circumstances where they can reasonably form a view as to the employee’s fitness for work, or as to the illness or injury of a member of the household or immediate family.
Generally speaking, the types of illness a pharmacist would be able to provide a medical certificate for would require no more than a few days away from work. The guidelines recommend pharmacists refer the patient to a doctor for serious illnesses.
What about a backdated medical certificate?
The term ‘backdated’ is confusing as what most employers would consider a backdated medical certificate is actually consistent with the AMA Guidelines. For example, it will be sufficient if a doctor sees an employee on a particular date but certifies that they were unfit for work prior to the date of examination.
It will not be consistent with the AMA Guidelines where a doctor dates a medical certificate on a day prior to the date that they actually saw the employee.
Employers are able to make enquiries with the medical practitioner’s office to check the validity of a certificate. There have been several cases where employees have altered previously issued certificates and were subsequently unsuccessful in unfair dismissal claims due to their dishonesty.
Employers should also be conscious of online medical certificate services where employees can obtain a medical certificate from a doctor without leaving home via a skype conference.
The AMA Guidelines provide that doctors should avoid participating in ‘online medical certificate services’ that certify illness, in the absence of a face-to-face consultation or a pre-existing doctor-patient relationship. However, the AMA Guidelines go on to state that this does not apply to appropriate tele-health consultations.
A tele-health consultation is when a patient and medical practitioner undertake a consultation via video conferencing equipment. Often, there will be another health worker (a nurse or general practitioner etc.) present with the employee during the tele-health consultation.
Presumably, the doctors issuing medical certificates to employees via skype conferences are compliant with the AMA Guidelines as such consultations are “appropriate”. However, there may be further developments in this area as such services become more commonplace.
What can employers do?
Employers can take active steps in managing the notification and evidence of personal/carer’s leave, such as:
- communicating to employees the notification requirements for the taking of personal/carer’s leave;
- making enquiries to ensure any medical certificate provided in support of personal/carer’s leave relates to the medical provider’s practice and expertise and that the provider is registered or licensed;
- specifying in policies when medical evidence is required and the types of evidence the employer considers reasonable; and
- requesting further medical evidence, where reasonable and appropriate.
This article originally appeared on the HopgoodGanim Lawyers website and has been reproduced with permission.