What are the issues for employers and employees when dealing with personal leave, sick leave and carer’s leave days each year?
Clarify your understanding of the issues surrounding medical certificates.
The Fair Work Act 2009 makes it clear that employers are required to provide their employees – both part-time and permanent – with a minimum number of personal/carer’s leave days each year. It’s worth noting that ‘personal/carer’s leave’ includes sick leave, but also covers absences where the employee needs to take care of a member of their household or immediate family.
Importantly, the Act also allows employers to ask their employees to provide ‘evidence that would satisfy a reasonable person’ that the leave was for genuine personal or carer’s leave reasons. The most common forms of evidence usually supplied are medical certificates and statutory declarations, both of which are perfectly fine. Some Modern Awards (documents that contain additional, minimum terms of employment in certain industries and occupations) also include details regarding the type of evidence that your client’s employees may provide, so it’s worth checking these too.
The Act does not specify whether an employer can ask an employee for medical certificates or other evidence each and every time one of their employees is absent. The key here is to be consistent. For example, you should have a policy that says all absences need medical certificates or, as an alternative example, an absence of two or more days or absence that falls on a Friday or Monday need medical certificates. It’s worthwhile noting that if an employee refuses a request from you to supply evidence, you do not need to pay them while they’re away from work.
Employers often ask whether they have to accept medical certificates as conclusive proof that the employee was genuinely sick. The simple answer is, yes. If an employee supplies medical certificates to you, you are expected to accept it at face value and pay the employee accordingly, unless the medical certificate is fraudulent.
You also have no right under the Act to ask the doctor for accurate information regarding the employee’s illness or injury.
The only time you should obtain this type of information is if they are concerned the employee is not well enough to safely perform their regular duties. For example, if a note said the employee had a ‘sore neck’, and the employee’s job requires lots of manual labour, it would be wise for you to write to the doctor asking for confirmation that the employee is well enough to do their job.
Here is a quick sick note summary for future reference:
- You have a legal right to ask an employee for evidence supporting their absence.
- You can ask employees for evidence after each and every absence.
- If the employee refuses your request, you do not need to pay them for the absence.
- You can’t demand a detailed diagnosis, but they can (and should) ask for confirmation that the employee is fit to do their job.
- You must accept valid medical certificates as conclusive proof of the employee’s illness.
- You should introduce a comprehensive workplace policy dealing with absences and evidence requirements.
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