Many business owners are familiar with the notion that when an employee is sick and takes leave, there are circumstances when you can require them to provide a medical certificate to support their claim for being unwell. However, what many employers might be unaware of are your rights when an employee is unwell and refuses to stay off work. This article explores your legal rights as an employer in these circumstances.

Consider the Employment Contract and Workplace Policies

If you have a permanent employee, they will accrue sick leave and can use their sick leave to take days off work when they are unwell. However, if you employ casual workers, they do not get sick leave entitlements and so will not be paid for days they don’t work. Regardless of the type of employee they are, it is first important to consider their employment contract and your workplace occupational health and safety procedures.

Your employment contracts should set out that employees are required to comply with workplace policies and procedures during their work. The Agreement should also require your employees to follow all reasonable and lawful directions. It is important to have a clear occupational health and safety policy that employees can understand and access easily.

If you have set out within that policy that they must not bring about any circumstances that could endanger or injure another person, this can also cover making another colleague sick. Employers have a duty under workplace health and safety legislation around the country to ensure the health and safety of all workers. The majority of legislative Acts require employees to take reasonable care for their health.

If you reasonably believe that your employee will make their colleagues unwell (e.g. they show symptoms of a contagious disease like the cold or flu), then you are within your legal rights to ask them to stay off work, or minimally, obtain a medical certificate stating they are fit for work.

Following Appropriate Procedures

Now that you understand your rights as an employer in asking an employee to go home if they are unwell, it is important to follow the appropriate procedures when doing so. For example, your workplace policy should make it clear and consistent the circumstances of when an employer can reasonably send an employee home from work. This is to avoid too much ambiguity around when an employee is unwell but is not sick enough to be asked to leave.


If you are unsure about your rights and responsibilities as an employer in dealing with ill employees, it may be best to speak with an experienced employment lawyer. They can discuss your specific circumstances, what policies you should put in place to protect your business and how you can go about implementing those policies to ensure that your employees know about their obligations when they are unwell. Questions? Get in touch on 1300 544 755.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Bianca Reynolds

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