Colds and flu are spreading their usual winter wings. So how do you as an employer manage employee’s access to their accrued paid personal/carer’s leave. As employers, we’re often less than impressed with the notice given by employees when they are unwell.
We’ll explore what’s required for employees to access their personal leave entitlements and some of the issues employers face when asking for evidence to support the claim for personal leave.
Just how much paid personal are employees entitled to?
Under the NES, full time employees have access to 10 days of paid personal/carer’s leave per annum, which accrues progressively and accumulates from year to year (pro-rata for part time employees). This leave can be taken either:
- because the employee is not fit for work because of a personal illness or injury; or
- to provide care or support to a member of the employee’s immediate family or a member of their household because of an illness or injury or because of an unexpected emergency.
You cannot refuse an employee access to their paid personal/carer’s leave as it is a lawful entitlement under the Fair Work Act 2009; refusal could result in penalties for the business and also the individuals who are complicit in the contravention.
What notice does your employee need to give of Personal/Sick Leave?
An employee has to let you know they are going to personal sick leave as soon as practicable (which be after the leave has started – e.g. emergency situation where the employee is hospitalised (or this happens to an immediate family member or household member). The employee should confirm how long they think they will be absent from work. Where this information is not provided, the employer should ask for those details.
Can an employer request a Medical Certificate?
You can ask an employee to give evidence to confirm why the employee has been away from work at any time; even if the absence if only one day. When this evidence is not provided, the employee may not be entitled to be paid for their personal leave.
Just be sure to check the relevant industrial instrument (employment agreement, modern award, enterprise agreement or organisational policies) as they may specify when an employee has to provide evidence to support the personal leave.
The NES don’t specify the type of evidence that needs to be given for sick leave; simply 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. A blanket requirement to provide a medical certificate for all personal/carer’s leave is likely to be unreasonable as there may be some circumstances where it is not reasonable or possible for an employee to obtain a medical certificate.
Does an Employer have to accept a Medical Certificate that just says an employee is suffering from a “Medical Condition”?
To challenge the validity of a Medical Certificate, you must suspect there has been dishonesty on the part of the employee – e.g. an employer successfully defended an unlawful dismissal claim after an employee was dismissed for taking personal leave (with a Medical Certificate) after an application to take sick leave to attend a football match was denied by the employer.
A Medical Certificate which only says 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, decisions by employers must be made on a case-by-case basis.
There is no requirement under the NES for a diagnosis to be provided. The Australian Medical Association’s Guidelines on Medical Certificates 2011 (revised 2016) (AMA Guidelines) suggest a Medical Certificate include the:
- name and address of the medical practitioner;
- name of the patient
- date of examination and date of issue; and
- date(s) on which the employee (or member of their immediate family / household) is unfit for work.
There may be situations where employers may reasonably and lawfully require more detailed medical information from an employee because of an employer’s obligation to provide a safe place of work, including where:
- there has been (will be) an extended absence from work or is required on a regular/ongoing basis;
- an employee is returning to work ( 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.
The Fair Work Ombudsman, who is the primary regulator of Australia’s workplace laws, generally takes a dim view of employers who, without good reason, seek to go behind a medical certificate. The Ombudsman does not consider it reasonable for an employer:
- to go to a medical appointment with an employee (unless the employee requests this); or
- to contact an employee’s doctor for further information about an employee’s medical condition.
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 NES 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. 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 pharmacists limit providing certificates for absence from work only in their areas of practice and expertise, which is primarily:
- supply, compounding or dispensing of medicines;
- provision of professional pharmacy services – e.g. advice on minor conditions and the effective and safe use of medicines; and
- 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.
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.
Would a backdated Medical Certificate be sufficient?
The term ‘backdated’ is confusing as what most employers would consider a backdated Medical Certificate is actually consistent with the AMA Guidelines. 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 previously stated a retrospective medical certificate can still “satisfy a reasonable person” and a unilateral rejection of a retrospective medical certificate represents a “dangerous intrusion by the employer into an area which, with respect, it has little expertise”. Employers need to be careful not to “play doctor”.
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 can enquire 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.
Can Personal Leave be taken for Medical Appointments and Elective Surgeries?
This is a case-by-case proposition, recalling that leave is available to be taken if an employee is not able to work because of illness or injury, or, to support a family or household member similarly affected (or affected by an unexpected emergency). Generally speaking, a legitimate absence on personal leave will require medical incapacity and, if requested, reasonable evidence of this.
More broadly, employers should be careful in managing employees seeking to take time away from work to care for or support a member of their immediate family or household, whether or not direct medical incapacity is involved. Situations of those kinds may involve the exercise of “family or carer’s responsibilities”.
This is an attribute for which further legal protections exist under both the Fair Work Act and Commonwealth, State and Territory anti-discrimination legislation. To treat a person adversely because they have sought to discharge family or carer’s responsibilities can be unlawful. The concept of “family or carer’s responsibilities” has also been interpreted to have a wide meaning.
Since the COVID19 pandemic, it has become common to attend a medical practitioner appointment by telehealth (either by phone or by an online platform).
So long as the medical practitioner issuing medical certificates to employees via these platforms are compliant with the AMA Guidelines, such consultations are “appropriate”. Again, questioning a medical certificate, without some other contrary and substantial evidence, may lead an employer into dangerous territory where it is accused of unlawfully intruding into an area where it has no expertise.
Akyra’s Key Takeaways
Employers can take active steps in managing the notification and evidence of personal/carer’s leave – e.g.
- communicating to employees the notification requirements for the taking of personal/carer’s leave;
- making general 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.
There can be instances where you will legitimately question a medical certificate, particularly where there is evidence of dishonesty.
Just remember that an employee has a statutory workplace right to take Personal/Carer’s leave if the evidence and notice requirements are met.
Source: based on information provided by Hopgood Ganim 15 June 2023
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The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.