It is a common misconception that an employee must be sick for at least a day or two before employers can request a doctor’s certificate. In fact, as an employer, you can request a medical certificate on the first day that your employee is on sick leave. To clarify this area of employment law, this article will cover:
- when your employee can take a sick day;
- what evidence you can ask for; and
- what happens if your employee cannot provide a certificate.
When Can Employees Take Sick Leave?
Your employee can take a sick day because they:
- are not able to work because of an illness or injury, or
- need to provide care or support to an immediate family or household member because of an illness, injury, or unexpected emergency affecting the member.
Sick or carer’s leave (also known as personal leave) should not be taken as another form of annual leave. That is to say, an employee should not take sick leave to go on a holiday. Otherwise, you could take disciplinary action against the employee for doing so.
Whom Can Employers Ask?
Your employee could be a permanent (part-time or full-time) employee, fixed-term employee, maximum-term employee or casual employee.
Casual Employees
The law does not require casual employees to provide medical certificates due to the nature of casual employment. Casual employees are not entitled to personal/sick leave or annual leave. In addition, casual employees can reject offers to work. Hence, you do not pay casual employees if they cannot work a shift because they are sick.
Permanent, Max-Term and Fixed-Term Employees
Permanent, max-term or fixed-term employees have a firm advance commitment to ongoing work. The law provides these employees with sick leave entitlements. Hence, if they cannot work because they are sick, you must pay them sick leave if they choose to take such leave.
Continue reading this article below the formWhen Can I Ask For Evidence of Sick Leave?
The answer to this is simple; you can ask at any time after your employee gives you notice of taking sick or personal/carer’s leave. For example, if you are worried that an employee is not actually sick, you can ask them to provide a medical certificate as soon as they inform you that they cannot work as they are unwell.
What Evidence Can I Ask For?
The Fair Work Act outlines that employers can require an employee to provide evidence “that would satisfy a reasonable person.” In essence, it is at your discretion. A certificate from a medical practitioner (e.g. a doctor) or a statutory declaration are examples of acceptable forms of evidence. However, you can accept a certificate from another type of health professional if that is your preference.
If your employee is unable to provide the required evidence, the employee may not be entitled to be paid for their sick or carer’s leave. Alternatively, if you think the evidence your employee provided was falsified, you can contact the doctor to confirm the legitimacy of the certificate.
Practical Considerations
You can ask for a medical certificate each time an employee takes sick or carer’s leave. However, this may be onerous for both you and the employee. If the employee does not provide evidence, then you will likely be chasing them up about it. Likewise, the employee will not be able to rest properly if they are having to book and attend a doctor’s appointment.
Additionally, some employers have a rule in their business that they only request a medical certificate if the employee takes personal/carer’s leave on:
- a Friday or Monday; or
- the day before or after a public holiday.
This can deter people from taking an “extended” long weekend when they are not actually unwell or caring for someone.
If it would make the process clearer in your business, you can implement a leave policy that sets out your expectations in terms of sick or carer’s leave and when you may request a medical certificate, as well as including other types of leave.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Key Takeaways
You can request evidence in relation to sick or carer’s leave (e.g. a medical certificate) at any time after your employee gives you notice of taking the leave. However, it may not be practical to request it on the first day of the employee taking personal/carer’s leave. Nevertheless, you may consider implementing a leave policy to clearly set out your expectations when it comes to leave.
If you need further advice on this topic or would like us to draft a Leave Policy for your business, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You can request a medical certificate after your employee gives you notice of taking personal/carer’s leave.
A certificate from a medical practitioner (e.g. a doctor) or a statutory declaration are common examples of acceptable forms of evidence. However, you can accept a certificate from another type of health professional if that is your preference.
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