The Value of Communication Plans to Manage Personal (Sick) Leave

So what are the most important points to address in your personal (sick) leave communication plan with employees?

1. Evidence to support a claim for personal leave.

As an employer, you can ask an employee to provide evidence that shows the employee took the leave because they were unable to / unfit for work due to an illness or an injury, or that they needed to provide care to an immediate family or household member due to their illness or injury.

Evidence can be required for as little as one day or less off work. A medical certificate can also be requested when the employee is taking care of someone who is a family or household member.

Typically, this evidence is a medical certificate or a statutory declaration. But whatever form the evidence takes, it has to convince a reasonable person the employee was genuinely entitled to personal leave. When an employee does not provide the requested evidence, the employee may not be entitled to be paid for that personal leave.

2. What notice does an employee need to give when requesting personal leave?

Where a policy does not stipulate what notice is to be given and how that notice is to be given, an employee has to let their employer know they are going to take sick or carer’s leave as soon as possible – i.e. before the leave is required or as soon possible after the personal leave has started. The employee should also specify how long they will be (or expect to be) off work.

3. Does an employer have to accept a medical certificate?

Generally, an employer is expected to accept a medical certificate at face value and pay the employee accordingly. The medical certificate will usually not state the specific reason for the personal leave absence. The employer should not contact the issuer of the medical certificate except to clarify points – e.g. the employee was seen by that medical practitioner on that day.

There may be situations where employers reasonably and lawfully require more detailed medical information from an employee – e.g. where there is an obligation to provide a safe place of work.

4. Does a medical certificate issued by a pharmacist meet the guidelines?

A pharmacist can issue a medical certificate for personal leave. However, they are authorised only to certify absences from work due to personal illness or the need to care for a family or household member. They cannot provide medical certificates for other types of leave – e.g. parental leave.

It is also important to note a pharmacist can only issue a certificate where that issuance is based on their scope of practice – e.g. supply, compounding or dispensing of medicines and providing professional pharmacy services (e.g. advice on minor conditions and the effective and safe use of medicines) in 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. The guidelines recommend pharmacists refer the patient to a doctor for serious illnesses.

These guidelines have been developed by Pharmacy Guild of Australia and Pharmaceutical Society of Australia. 

5. Can a medical certificate be backdated?

The Australian Medical Association’s guidelines state certificates must be dated on the day they were written. However, it will be sufficient if a doctor sees an employee on a particular date but certifies they were unfit for work prior to the date of examination – this is essentially a retrospective medical certificate.

The Fair Work Commission has also said a retrospective medical certificate can still “satisfy a reasonable person” and rejection of a retrospective medical certificate represents a “dangerous intrusion by the employer into an area which, with respect, it has little expertise” – i.e. don’t try to play doctor!

Where a medical certificate appears to be false, the employer is within their rights to ask questions and implement disciplinary action if it is warranted.

6. Is personal leave able to be used for medical appointments and elective surgeries?

Personal leave can be used for medical appointments and elective surgeries BUT only if the employee is unfit for work due to personal illness or injury. The Fair Work Act 2009 (Cth) specifies personal leave can only be taken when an employee is not fit for work because of their own personal illness or injury.

For pre-arranged medical appointments or elective surgeries, the employee’s fitness for work is the determining factor – e.g. if an employee wishes to attend a pre-arranged visit to a specialist or any pre-arranged medical consultation or allied health visit (such as physiotherapy), mere attendance to these appointments would not, in and of itself, justify taking personal leave.

It’s important to note an employer can ask for evidence from an employee to confirm they were unfit for work. This can help decide if an employee should be paid personal leave or be paid a different type of leave or entitlement.

7. Online consultants for personal leave

Akyra has previously published a blog on this topic. In essence, a medical certificate from an online consultation CAN be valid. However, the employer should also investigate whether the employee actually saw / spoke to a medical / nurse practitioner or simply completed an online form after which a fee was paid, and the certificate issued.

Key Takeaways

To ensure that employers avoid headaches when it comes to personal (sick) leave, communication plans with employees can be an incredibly helpful way of clearly communicating obligations and expectations with employees.

Akyra suggests employers take active steps to manage this year’s cold and flu season by:

• Reviewing the business’ leave policy, particularly in relation to personal / carer’s leave;
• Reminding employees of the criteria related to personal / carer’s leave – e.g. who to contact and when/how if personal leave is required; a medical certificate and when it is required;
• If necessary, making general enquiries to clarify that the medical certificate was obtained by the employee on the relevant date and issued by a medical / nurse practitioner (or pharmacist where that could apply); and
• Requesting further medical evidence where it is reasonable and appropriate to do so; remembering that employees have a workplace right to take personal/carer’s leave if the evidence and notice requirements are met.

Akyra can advise employers on their obligations and rights concerning personal (sick leave). Contact the team at Akyra today for an obligation-free discussion.