What are the Evidence requirements for Personal/Carer or Sick Leave?
An employee tells you they are sick and cannot attend work. What evidence do they need to give you?
Can you ask for a report from their doctor, or ask to attend a consultation with their doctor?
Under the Fair Work Act 2009, an employer is only permitted to ask an employee for sufficient medical evidence that would “satisfy a reasonable person.” If an employer requests medical evidence, and medical evidence that would satisfy a reasonable person is provided by the employee, the employer must grant the requested leave to the employee.
Careful consideration must be given by an employer as to whether the evidence requested is excessive, or goes beyond the bounds of what is required to satisfy a reasonable person.
The Fair Work Ombudsman has released a media release commenting on employers seeking to attend medical appointments with employees. The opinion of the Ombudsman is that unless specifically requested to by the employee, it is not reasonable for an employer to attend the employee’s medical appointment.
The Fair Work Ombudsman is of the opinion that the medical profession is sufficiently regulated to deal with any improperly issued certificate, and because of that, an employer’s reliance upon a medical certificate only would generally be reasonable. In this regard, an employer attending an employee’s medical appointment would usually be a serious breach of the employee’s privacy, and therefore unnecessarily impact on the employment relationship.
This should be a reminder for all employers to reassess their policies when requesting evidence from employees in regards to personal/carer leave. For example, for the same reasons as above, employers should be reluctant to ask an employee for multiple medical certificates from different medical practitioners, to satisfy suspicion of the falsehood of their employee’s medical condition. Such a policy is likely to be unreasonable.
However, the Fair Work Ombudsman has made a concession in their media release that unusual or exceptional circumstances may provide for an exemption to this general principle.
Additionally if employers are concerned about the capacity for the employee to continue to work in their role because of their illness or injury, they may require specific medical advice regarding this. (Note: other provisions of the Fair Work Act and discrimination legislation would apply in this context).
If you have questions relating to Personal/Carer and/or sick leave, contact us
This article was written by James Tan & Alistair Macpherson .
Please Note: This is not legal advice but it may help you understand the law. Read more...