Medical certificates and personal leave policies

The Fair Work Act provides that an employer may require an employee to provide evidence that would satisfy a reasonable person that the employee is entitled to leave. The types of evidence most commonly requested are a medical certificate or a statutory declaration.

The Act doesn’t refer to a “medical practitioner”, “medical certificate” or a “registered health practitioner” in the context of paid personal leave. It refers to a “medical certificate” only with respect to evidence regarding unpaid maternity leave under the National Employment Standards.

In this context, a personal leave policy may be considered to be unreasonable if it requires an employee to produce a medical certificate for any absence related to paid personal leave. It may be preferable for the policy to state that the employer may reserve the right to request the production of medical certificate based on the individual circumstances of each claim for paid personal leave.

 

Reasonable in the circumstances

Requesting a statutory declaration may be reasonable when it comes to a single day absence. However in the case of repeated single day absences or where there is a pattern to the absences (such as before or after a weekend, or before or after a public holiday), it may be reasonable for the employer to request a medical certificate in support of the employee’s request for leave.

 

Modern awards and enterprise agreements

Most modern awards don’t contain terms relating to the type of evidence required to be produced by an employee when claiming paid personal leave. This is because the then Australian Industrial Relations Commission, in a decision relating to the award modernisation process, decided it wouldn’t include terms in modern awards that would undermine the notice and evidence requirements of the Fair Work Act.

However such terms are more common in enterprise agreements. For example, the Fair Work Commission issued a workplace determination with respect to an enterprise agreement that inserted a provision which allowed an employer to request a medical certificate or statutory declaration if an employee had any sick leave absences in excess of three single days in a particular year.

 

Other registered health providers

In some circumstances, an employee may produce a certificate from a registered health provider other than a general practitioner. For example, it may not be reasonable (or lawful) for an employer to refuse to recognise a certificate issued by a registered dentist, osteopath, chiropractor, pharmacist, physiotherapist or psychologist (although this may depend on the condition that prevented the employee’s attendance at work).

According to the Pharmacy Guild of Australia, a pharmacist can provide a certificate as evidence that would satisfy a reasonable person of an employee’s illness or injury. However the Guild strongly recommends that pharmacists limit the provision of certificates to their area of practice and expertise. This 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)
• circumstances where they can reasonably form a view as to an employee’s fitness for work or as to the illness or injury of the member of the household or immediate family.

 

The bottom line

It may be unreasonable for a company policy to require employees to produce a medical certificate for an absence on personal leave because the Fair Work Act specifically refers to evidence that would satisfy a “reasonable person”.