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Employees often take sick leave or personal leave, but when is it appropriate to request them to present medical information showing their illness? Employees have an entitlement to take accrued paid sick leave and personal leave under the Fair Work Act if they are not fit for work because of a personal illness or injury. You can ask employees to provide evidence that shows the employee took the leave because they:

  • were not able to work because of an illness or injury; or
  • needed to provide care or support to an immediate family member

This article will outline when you can ask an employee for medical information if they take sick leave.

Fair Work Requirements

Employees must provide the evidence as soon as practicable. This can be after the leave has been taken. You can ask for evidence even if one day of leave has been taken. 

However, employers sometimes state in the employment contract or policy that employees only need to provide evidence after a certain number of consecutive days off, or where the leave falls either side of a weekend or public holiday. 

The employee must also state the duration or expected duration of the leave. This is unless otherwise outlined in their employment contract or enterprise agreement.

Types of Evidence Needed for Sick Leave or Carer’s Leave

The employee needs to provide evidence that ‘would satisfy a reasonable person’ of their illness. Medical certificates or statutory declarations are examples of acceptable forms of evidence. While there are no strict rules on what type of evidence an employee needs to provide, the evidence has to convince a reasonable person that the employee was genuinely entitled to the sick or carer’s leave. If a modern award, employment contract or enterprise agreement requires an employee to provide a certain kind of medical evidence, you are able to ask them to do so. If you are not happy with the evidence that the employee provides, you can send them to a certain doctor. This is also only if these documents prescribe this.

You have the right to not pay the employee’s sick leave or carer’s leave entitlements if they refuse to provide you with evidence.

Case Study

The Australian and International Pilots Association v Qantas decision concerned a clause in an enterprise agreement that provided:

“if a flight crew member reports sick on the same day that he or she is contracted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.”

This case held that an employer has the right to require an employee to provide sufficient medical information. If necessary, an employer can require the employee to attend a medical examination to procure that information.

According to the court, the right to this information was necessary to allow the employer to comply with its work health and safety obligations.

Attending Medical Appointments and Elective Surgery

Medical appointments and elective surgeries that employees arrange in advance can only be covered by sick leave if an employee is not able to work because of a personal illness or injury. It will depend on each individual circumstance.

You can ask for evidence from an employee to confirm that they were unfit for work. This can help decide if an employee should receive sick leave or a different type of leave or entitlement.

Tips for Protecting Your Business

You should have a robust employment contract in place that outlines clearly:

  • when medical information is required. For example, after two days of consecutive sick leave;
  • what the notice period is;
  • the consequence of not providing medical information; and
  • you want them to attend a specific doctor if you are unhappy with the medical information they provide.

Key Takeaways

You should ensure you understand whether your employee is under an enterprise agreement or employment contract. These documents each outline certain requirements to request medical information. If there is no agreement, the Fair Work Act applies. To protect your business, you should have clear employment contracts and policies in place that outlines when medical information is required. If you have any questions about complying with your employment obligations, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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