Summary
- Employers in Australia cannot require employees to disclose their specific medical diagnosis when requesting sick leave.
- Employers may request reasonable evidence of illness or injury, such as a medical certificate, but only when it is reasonable to do so.
- Dismissing or penalising an employee for taking legitimate personal or carer’s leave may constitute adverse action under the Fair Work Act 2009.
- This article is a plain-English guide for Australian business owners on managing employee sick leave entitlements under Australian employment law, prepared by LegalVision’s business lawyers.
- LegalVision, a commercial law firm, specialises in advising clients on workplace and employment law matters.
Tips for Businesses
Request a medical certificate for absences rather than asking for a diagnosis. Keep records of leave taken and any evidence provided. Apply sick leave policies consistently across your workforce. Review your employment contracts and workplace policies to ensure they align with obligations under the Fair Work Act 2009.
As an employer, you have the legal right to ask employees about their illness and request proof of absence under the Fair Work Act 2009. Knowing when and how to exercise this right helps you manage absences confidently and lawfully. This article explores the legal position of inquiring about an employee’s illness to help you navigate your rights as an employer.
Can I Ask for Proof of Illness?
If an employee is absent from work, you can require them to provide proof that they were:
- unable to work due to sickness or injury; or
- required to care for or support a member of their immediate family or home (because of an illness, injury, or unexpected emergency affecting the member).
When an employee must provide proof, an award or registered agreement might detail when and what sort of evidence they must provide. In all cases, the evidence requested must be appropriate in light of the circumstances.
Additionally, employers might require employees to show documentation for each day they are off work. If your employee fails to provide adequate documentation per your request, you are within your rights to deny payment for sick leave or carer’s leave. However, it is important to be sensitive about an employee’s situation. It might be the case that your employee is seriously injured and finding it difficult to drive to a GP. It is best practice to allow your employee time to produce a medical note rather than denying payment for sick leave without any exceptions.
Can I Make Additional Enquiries About Why They Are Sick?
In circumstances of suspected forgery, you may investigate absences and medical certificates further. Examples of suspicious circumstances include:
- the employee was seen out at a pub whilst allegedly sick; or
- the employee’s medical certificate looks fraudulent.
Work Health and Safety Concerns
It is acceptable for an employer to make enquiries as to why employees are sick if it is related to work health and safety. If you suspect your employee sustained the injury/illness at work, it may be reasonable to make further enquiries. Importantly, you want to ensure there are no hazards in the workplace that could impact your obligations of health and safety to your employees.
However, there are boundaries to what questions you can ask your employees. If the sickness or injury is not related to employment, then the cause or details of the illness will not usually be relevant. It may also be unreasonable to demand an employee to reveal details about their health in situations where they have no obligation to disclose personal information.
Asking an employee if they can safely fulfil the intrinsic requirements of their work is compatible with an employer’s duty of care. Where your employee makes a claim of incapacity, it will be acceptable for you to enquire whether any reasonable adjustments or special services or facilities are required. This would allow your business to put relevant services or facilities in place, so that the ill or injured employee can return to work safely.
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Key Takeaways
Managing employee absences is part of your role as an employer. While being sensitive and understanding is important, knowing your rights when employees are absent from work is also critical. If an employee is absent from work, you can require them to provide proof that they were:
- unable to work due to sickness or injury; or
- required to care for or support a member of their immediate family or home (because of an illness, injury, or unexpected emergency affecting the member).
When an employee must provide proof, an award or registered agreement might detail when and what sort of evidence they must provide. In all cases, the evidence requested must be appropriate in light of the circumstances.
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Frequently Asked Questions
In circumstances of suspected forgery, you may investigate absences and medical certificates further. You should raise your suspicions with them and allow them a chance to explain their situation. Importantly, avoid jumping to conclusions.
If you suspect your employee sustained the injury/illness at work, it may be reasonable to make further enquiries. By inquiring further, you can ensure there are no hazards in the workplace that could impact your obligations of health and safety to your employees. However, there are boundaries to what questions you can ask your employees. If the sickness or injury is not related to employment, then the cause or details of the illness will not usually be relevant.
No. You cannot contact an employee’s doctor without their consent, as this breaches privacy obligations.
Yes, but only after following a fair process, including warnings and consideration of reasonable adjustments.
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