By Sean Melbourne

Falling ill or getting injured is a natural part of life. No reasonable employer can expect their employees to never take a day of sick leave. However, the blurred lines that exist around paid personal leave can create significant challenges for businesses.
In Australia, the laws around personal or carer’s leave tend to be tipped in the employee’s favour. As long as their employee has a medical certificate, employers may feel obliged to give them the day off. The problem with this is that not all medical certificates are created equal.

Of course, there are many sick leave claims that are genuine. But considering research from employee software company TSheets found that only 52% of workers who took sick leave were actually ill – a figure also reflected in a recent SkyNews survey – employers certainly aren’t wrong to be sceptical. In total, Australians are taking 90 million sick days every year – a $34 billion hit to the economy annually.

No employer ever wants to pay their employee to sit on the beach under the pretence of being sick. However, there are times when false sick leave becomes more than just an inconvenient nuisance.

According to Hayley Furer, Director at Source HR, “Fake sick leave can leave employers stymied when employees do it to get out of performance management, when misconduct issues have been raised with them, or after they have given notice – such as where the sick leave certificate just happens to be the same length as their notice period. This can create significant headaches for employers.”

Employers can push back on dubious sick leave claims. Here are six tips for ensuring that sick leave is used for legitimate reasons.

Know your rights

You don’t need to wait. Under the Fair Work Act, employers can ask employees to provide evidence for as little as one day or less of work missed. If the employee does not provide evidence when asked, you are entitled not to pay them for the sick leave.

Pharmacy medical certificates

In Australia, it’s become increasingly common for employees to seek medical certificates from pharmacies — thanks to chains like Chemist Warehouse hawking $20 ‘Absent from Work Certificates’, compared to an $80 doctor’s appointment. The Pharmacy Guild of Australia has backed this practice since its introduction in 2009.

However, an employer only has to accept a certificate if it would satisfy a reasonable person that leave has been taken because the person is unfit for work because of a personal illness of injury. Pharmacists are not qualified to diagnose illness or assess whether someone is fit for work. In our view, if an individual isn’t qualified to do this, a certificate from them wouldn’t be enough to satisfy a reasonable person that the employee is unfit to work. An exception to this could be where it is a minor condition like a cold or flu.

Online medical certificates

The same applies to online medical certificates. These are on the rise in Australia, too — for example, since its launch in 2015, Qoctor online health service has issued more than 15,000 medical certificates online. However, the Australia Medical Association has restrictions around this kind of conduct. Given the AMA rejects online medical certificates in most cases, in our view a reasonable person would not accept them as evidence for the purpose of sick leave.

If your employee provides a certificate from a pharmacist or an online medical certificate, you can request one from a doctor instead.

Get the necessary information

Even if the medical certificate comes from a doctor, it may have grounds for rejection if it doesn’t provide adequate information about the patient’s ability to work, such as the doctor’s medical opinion about your employee’s situation.

Of course, patients are entitled to request that the doctor keeps the details of their condition confidential. This is often a sticking point for employers because, without information about the employee’s illness or injury, they can’t determine whether they really are unfit for work or could be accommodated with altered duties. However, if it becomes an ongoing problem, employers can request a medical opinion about the employee’s ability to work with altered duties. Sometimes an employer can require employees to undergo a fitness for work examination by a doctor chosen by the employer.

According to the AMA medical certificate guidelines, all medical certificates should include:

  • the date the examination took place
  • the degree of incapacity
  • the date the medical practitioner considers the patient likely to be able to return to work
  • be addressed to the organisation requiring the certificate as evidence of illness
  • the date the certificate was written and signed

The AMA also states that under no circumstances should a medical certificate be backdated. If this is the case it may also be grounds for rejection.

Social media

It is surprisingly common for employees to take sick leave and then for photos to appear on social media suggesting that they are anything but unfit for work. If this happens after an employee has provided a medical certificate, employers can ask the employee for an explanation. However, employers should not to jump to conclusions. For example, if an employee has taken sick leave due to stress, it may be consistent with this to be out with friends or doing activities that help their stress condition.

Be clear upfront

It’s a good idea to have a sick leave policy in place, so that it’s clear what’s expected, such as that a medical certificate from a doctor is required. This can avoid nasty surprises for all concerned and ensure a more harmonious workplace.

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By | Published On: 4th November, 2019 | Categories: Employment law, Guides | Tags: , |