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 taken 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 contain 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 employer can ask an employee for a certificate 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 to be covered by a medical certificate or, as an alternative example, a medical certificate is only required if the absence is for two or more days or falls on a Friday or Monday. 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 a medical certificate as conclusive proof that the employee was actually sick. The simple answer is, yes. If an employee supplies a genuine certificate to you, you are expected to accept it at face value and pay the employee accordingly.
You also have no right under the Act to ask the medical practitioner for specific 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 normal 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:
1. You have a legal right to ask an employee for evidence supporting their absence.
2. You can ask employees for evidence after each and every absence.
3. If the employee refuses your request, you do not need to pay them for the absence.
4. You can’t demand a detailed diagnosis, but they can (and should) ask for confirmation that the employee is fit to do their job.
5. You must accept a genuine medical certificate as conclusive proof of the employee’s illness.
6. You should introduce a comprehensive workplace policy dealing with absences and evidence requirements.