Requesting Medical Certificates From Sick Employees: Legal?

As an employee, you are entitled to sick leave. An employee must notify their employer when they are taking sick leave as soon as reasonably possible. As an employee, you should also advise how long you anticipate to be off work. A common question employers ask is whether they can request a medical certificate from sick employees? Read our guide to find out more.

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When Does a Certificate Have to Be Given?

So when can employers legally request a medical certificate? Under the Fair Work Act 2009 (Cth), employers are allowed to request their employees to provide evidence ‘that would satisfy a reasonable person’. As an employee, you would use this evidence to prove that your leave was taken for genuine personal reasons. This extends to needing to provide care to an immediate family or household member because of illness.

It is a common misconception that the employee needs to take at least two days’ consecutive leave before the employer can request a medical certificate. However, this is not the case. There is no minimum period. Rather, you are entitled to ask your employees to provide evidence for one day off work. For assistance in addressing the issue of sick leave, you can read our guide ‘How to Manage an Employee Who Is Taking Too Much Sick Leave‘.

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What Does the Law Say?

The Fair Work Act 2009 (Cth) entitles employees with the right to accrue sick leave if they are unable to work due to sickness or illness. As discussed previously, the law does not require a minimum period of leave to request a medical certificate. Hence, an employee who refuses to provide evidence of their leave may be declined sick leave pay. The laws surrounding when medical certificates are required can vary between industry awards.

As an employer, it can be beneficial to implement a leave policy. This sets out the range of entitlements in relation to different types of leave. Your policy can include clauses on which absences need to be covered by a medical certificate. This may state absences for two or more consecutive days require a certificate, or it may require any time periods taken. You can customise our Leave Policy for free.

So what happens if your employee provides a medical certificate and you don’t trust that it is legitimate? This can be a challenging area. It is important to know as an employer, you cannot question the legitimacy of a valid medical certificate. Hence, you must pay the employee sick leave entitlements. Furthermore, you are not permitted to speak with the practitioner regarding the nature of the employee’s illness.

Final Thoughts

In conclusion, employees are entitled to request medical certificates from sick employees. Contrary to popular belief, the law does not state a minimum time period for requesting a certificate. Hence, if you ask your employee to provide evidence of their illness, they must do so. As an employee, you may be refused sick leave pay. However, you should exercise caution in this area. If you are unsure of the laws surrounding sick leave, we recommend consulting an Employment Lawyer.

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