Under the Fair Work Act 2009 (Cth), employees, as part of their entitlements, have the right to accrued paid sick leave if they cannot work due to illness or injury. Knowing when you can ask an employee for medical information is important, as under certain circumstances employers do not have this right.

If an employee calls in sick, you may ask them to provide a medical certificate. Employers want to know the details of the injury or sickness, which are often not available in a medical certificate.

When can I ask an employee for medical information?

To be entitled to sick leave, the employee needs to provide proof of their sickness/injury that “would satisfy a reasonable person” that the employee is genuinely unwell and that they are using the sick leave entitlement for this purpose.

When an employee takes sick leave and is expecting to be paid during this leave, certain evidence will be required under the relevant award or enterprise agreement that is most appropriate to the work relationship between employer and employee.

In circumstances, according to the relevant award/enterprise agreement, you, as an employer, are entitled to demand the employee prove his or her sickness. However, please note that this right must still be exercised reasonably under the Fair Work Act. [1]

Recent Case Law

In a recent Federal Court decision, there was a clause in an enterprise agreement that stated the following:

“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.”

In this case, the Court decided that the Fair Work Act and the company’s enterprise agreement were important considerations in determining the employer’s right to request medical evidence proving the employee’s physical or emotional state of affairs, however, was not the only source of that right. In other words, the Court was of the opinion that employers may ask an employee for reasonable medical information. The Courts made this conclusion by inferring a right implied by the law in to the terms of the employment contracts between employee and employer. The Courts extended this right to include requiring medical examinations of employees to obtain the relevant medical information.

The Court granted this right to employers based on the employer’s need to comply with its Health and Safety obligations. By allowing employers to ask an employee for medical information, the Courts were satisfied that this would allow employers to:

  • Determine whether the employee’s “injury” is in any way due to the Health and Safety practices (or lack thereof, as the case may be) of the employer;
  • If so, to allow the employer to rectify its sub-standard Workplace Health and Safety standards to avoid such a situation in the future and encourage the absent employee to feel comfortable returning.

The Court also justified the employer’s right to request medical information by saying that it allowed the employer to make any necessary changes to accommodate with one less staff member. The Court believed it was unreasonable to leave an employer with no way of determining the future fitness of an employee and whether they would be fit to work in the near future.

Conclusion

If you are an employer and you are not sure whether you can ask for proof of your illness or injury, or if you are an employee and you are not sure if you are required to give proof of your illness or injury, please contact LegalVision on 1300 544 755.

If you are looking for assistance in drafting your employment agreements so that they encompass these terms and conditions, our team of employment lawyers will happily assist.

[1] Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32.

Ursula Hogben

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