Q   The company has a leave policy which requires the employee to provide reasonable evidence of their illness or injury when claiming paid personal leave. The policy currently does not specify what evidence is regarded as ‘reasonable’. The company wants to include a term in the policy which defines ‘reasonable evidence’ as a medical certificate issued by a general practitioner. The primary reason for the change is there has been an increase in short-term absenteeism over the past 12 months. It is our understanding a medical certificate is considered proof that an employee was ill or injured. Would such a term be considered reasonable or is there other evidence which would satisfy the eligibility requirements regarding paid personal leave under the National Employment Standards? 
 
A  Under the Fair Work Act (s.107), to be eligible for payment of personal leave, an employer may request an employee to provide evidence that would satisfy a reasonable person of the employee’s illness or injury. The Explanatory Memorandum to the Fair Work Bill 2008 (para 415) states that ‘it may not be reasonable on every occasion of personal illness for an employer to require an employee to produce a medical certificate. However, in the case of an absence extending beyond a short period or repeated absences on particular days, such as before or after a weekend or public holiday, it may be reasonable for the employer to request the production of a medical certificate.’ Without producing satisfactory evidence on the employer’s request, the employee is not entitled to paid personal leave. 

This means the reasonableness of the evidence is determined by the circumstances relating to the absence. A single day’s absence would, it would seem, be considered a short period consequently evidence, such a statutory declaration, may be reasonable in the circumstance, rather than a medical certificate. The second consideration in the above question is whether the employer should only accept a certificate issued by a general practitioner. 

 

Other health practitioners 

A situation may occur where an employee may produce a certificate from a ‘registered health practitioner’ other than a medical practitioner. Is this evidence that would satisfy a reasonable person of the employee’s illness or injury? This may depend on the registration or licensing law of the relevant State or Territory for that professional group. For example, it may be difficult for an employer to refuse to recognise a certificate issued by (say) a registered chiropractor, dentist, osteopath, pharmacist, physiotherapist or psychologist, although this may depend on the condition that prevented the employee’s attendance at work. 
 

Pharmacists 

The incidence of flu-related absences increases during the winter months. While flu symptoms may be self-evident, it is becoming increasingly common for employees to produce a certificate from a pharmacist as evidence of their illness. The Pharmacy Guild of Australia states that the Fair Work Act allows pharmacists to issue a certificate as proof of legitimate absence from work, although it recommends that this practice be limited 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 
  • related to circumstances where they can clearly 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 immediate family. 

The Guild has issued Guidelines for pharmacists issuing certificates for absence from work and a Reference Guide — issuing certificates for absence from work involving minor conditions in pharmacy to assist pharmacists. 

 

Bottom line 

A company policy that requires an employee to produce a medical certificate for any absence due to illness or injury may be unreasonable, depending on the circumstances. An employer’s refusal to accept a certificate from a health provider, other than a general practitioner, may also be considered unreasonable, depending on the circumstances.