Q. Our company is currently reviewing its personal/carer’s leave policy. There is a view within management that the company should insist on an employee producing a medical certificate when absent from work due to an illness or an injury. The current policy refers to “reasonable evidence of illness or injury”. This term is viewed as vague and could incorporate a certificate from any number of different health providers. Would a change to the company policy that insists an employee's production of a medical certificate issued as proof of illness or injury comply with the provisions of the Fair Work ? 

A. Such a term in a company policy could be regarded as unreasonable. It may be preferable for the policy to state the employer may reserve the right to request the production of a medical certificate based on the individual circumstances of each claim for paid personal leave. The policy may be considered unreasonable if an employee is required to produce a medical certificate for any absence related to personal/carer’s leave. The Fair Work Act (s.107(3)) provides that an employer may require an employee to provide evidence that would satisfy a reasonable person that the employee is entitled to the leave. The types of evidence most commonly requested are a medical certificate or a statutory declaration.  However, the Fair Work Act does not refer to a ‘medical practitioner’, ‘medical certificate’ or a ‘registered health practitioner’ in the context of personal/carer’s leave. 

 

Reasonable in the circumstances 

Requesting a statutory declaration may be reasonable for a single-day absence, however, in the case of repeated single-day absences with a distinct pattern to the absences, such as before or after a weekend or before or after a public holiday, or an extended period of absence (say three days or more), it may be reasonable for the employer to request a medical certificate in support of the employee’s request for leave.  


Modern awards & enterprise agreements 

Most modern awards do not contain terms relating to the type of evidence required to be produced by an employee when claiming paid personal leave. This is because the (then) Australian Industrial Relations Commission in a decision relating to the award modernisation process decided it would not include terms in modern awards which would undermine the notice and evidence requirements of the Fair Work Act. Such terms, however, are more common in enterprise agreements. For example, the Fair Work Commission issued a workplace determination to an enterprise agreement that inserted a provision that allowed the employer to request a medical certificate or a statutory declaration if the employee has any sick leave absences in excess of 3 single days in a particular year. 


Other registered health providers 

A situation may occur where an employee may produce a certificate from a registered health provider other than a general practitioner. For example, it may be difficult for an employer to refuse to recognise a certificate issued by a registered dentist, osteopath, chiropractor, pharmacist, physiotherapist or psychologist, although this may depend on the condition that prevented the employee’s attendance at work. 

According to the Pharmacy Guild of Australia, a pharmacist can provide a certificate as evidence that would satisfy a reasonable person of an employee’s illness or injury. However, the Guild strongly recommends that pharmacists limit the provision of certificates for absence from work to their area of practice and expertise, which is primarily: 

  • the supply, compounding or dispensing of medicines 
  • the provision of professional pharmacy services, including advice on minor conditions and the effective and safe use of medicines; and 
  • to circumstances where they can reasonably form a view as to an employee’s fitness for work, or as to the illness or injury of the member of the household or the immediate family. 

 
When must a medical certificate be produced? 

The Fair Work Act (s.12) refers to a ‘medical certificate’ only for evidence regarding unpaid parental leave under the National Employment Standards – specifically relating to ‘paid no safe job leave’, ‘unpaid special parental leave’ and ‘transfer to a safe job’. 


Bottom line 

It would be unreasonable for a company policy to require employees to produce a medical certificate for any absence on personal/carer’s leave as the Fair Work Act specifically refers to evidence that would satisfy a reasonable person.