Backdated medical certificates

We have an employee who claimed that they were unwell on a number of dates during the month of October. The employee did not provide medical certificates for these absences until later in the month. We believe that the doctor may have issued all of these certificates on one day at the end of the month. Is this lawful? If not, how should we respond?

The Fair Work Act 2009 has general provisions in regards to notice and evidence requirements for the taking of paid personal/carer’s leave. However, there is no law that specifically addresses the issue of backdating medical certificates. Rather, the Australian Medical Association (AMA) has written guidelines (AMA Guidelines) for medical practitioners when issuing medical certificates.

Backdating medical certificates

The term ‘backdating’ can be confusing. In the context of medical certificates, the term may have two distinct meanings. These two meanings are dealt with differently in the AMA guidelines. A copy of the AMA guidelines can be found here.

• First meaning: A doctor sees an employee on a particular date but, after careful consideration, is prepared to certify that they were unfit for work prior to the date of examination. This is consistent with the AMA guidelines.
• Second meaning: The doctor dates a medical certificate on a day prior to the date that they actually saw the employee. This is not consistent with the AMA guidelines.

Suspicious medical certificates

An employer who is unsure if a medical certificate has been issued correctly can contact the medical clinic that allegedly issued the certificate to confirm certain details. Such details include that the medical clinic did in fact issue the certificate.

What if the AMA guidelines have been breached?

An employer who is unsure if the medical certificate that they have received is consistent with the AMA guidelines can contact the AMA to investigate making a complaint against the relevant medical practitioner. Employers may wish to start this process by visiting the AMA website at www.ama.com.au.

Evidence requirements for paid personal/carer’s leave may be broader than medical certificates

It is important to remember that the Fair Work Act 2009 requires an employee to provide their employer, if requested, with evidence that would satisfy a reasonable person that paid personal/carer’s leave is being taken for appropriate reasons.

This means that an employee will often be able to satisfy the evidence requirements by providing evidence other than medical certificates, such as statutory declarations.

Furtherinformation

To discuss this topic further, please contact us or call the Ai Group Workplace Advice Line on 1300 55 66 77.