Does an employee have to provide a medical certificate if they take sick leave before or after a weekend?
Under the National Employment Standards (NES) all employees, except for casuals, are entitled to paid personal leave or sick leave.Employees can take paid personal leave when they are either ill or injured.
When accessing personal leave, an employee must generally notify their employer as soon as practicable and must advise the employer of the period, or expected period, of absence.
Notwithstanding any contrary requirements found in a relevant workplace agreement, policy or employment contract the employer has the right to ask the employee to provide satisfactory evidence when taking personal leave no matter what day it falls.
The evidence that would satisfy a reasonable person may differ depending on the circumstances and does not necessarily include the provision of a medical certificate (for example a statutory declaration). This means that the evidence that the employee provides can be any evidence that demonstrates that they were unfit for work for that period.
In general, it is reasonable for an employer to request an employee provide a medical certificate as evidence on any occasion that the employee seeks to access their personal leave, including days before or after a weekend.
Employers can legitimately withhold payment for personal leave where an employee fails to comply with their obligations in relation to notice and/or evidence though caution is advised.
Not paying an employee when they have failed to provide adequate notice and/or evidence may be in breach of the general protections provisions in the Fair Work Act 2009if the employee has genuine reasons for not being able to meet these requirements.For example, an employee who has been ill may not have had the opportunity to see a doctor due to the lack of available appointments, or they may be experiencing personal problems which, although they are not ill, prevented them from coming to work.
Effective attendance management involves finding the right balance between supporting employees with their health/work problems, and taking consistent and firm action against employees who demonstrate high patterns of questionable absence. Some strategies employers can undertake to help minimise absenteeism include:
Implementing a clear policy relating to absences and personal/carer’s leave. Ai Group's Absenteeism & Presenteeism Survey 2015 showed that employers with an absence/ leave policy had lower rates of absenteeism. The policy should include any evidence requirements (such as medical certificate) and any notification requirements. More information about personal/carer’s leave policies is discussed in our Managing absenteeismarticle.A sample leave policy prepared by the Ai Group is availablehere.
Regular one-on-one meetings with each employee, at least every six months, will ascertain whether or not there are parts of the job they find difficult or unpleasant. This will enable a manager to identify the need to offer further training or areview of internal processesto ease the problem. This will also demonstrate a willingness to try to accommodate preferences or strengths, as well as making the employer’s expectations clear. This sense of give and take will help establish a relationship that will, hopefully,reduce absenteeism.
It can be difficult to identifypatterns of absence and relying on anecdotal evidence or observations of management may be unreliable. As a result, certain targets and ‘triggers’ are often established within an organisation. These trigger points are used to detect any problems that may arise due to absence taken by employees, be it genuine or questionable, and bring attention to when action may be required. For example, one trigger point might beabsences that regularly fall on specific days, e.g. a Monday and/or Friday, before or after a public holiday, before or after a period of annual leave or after a pay day.
Other examples of trigger points include absences that exceed a certain amount of days in a six-month period and absences for frequent and unrelated non-specific illness, e.g. headache, stomach ache, back trouble, especially where there could be a link to the workplace.
Management should always approach matters brought to their attention via triggers with an open mind and treat each case on its merits. Though a pattern may not be apparent, it can often be a more beneficial course of action to speak with employees about their absence before a trigger is enabled. This may simply involve a quick chat to see how they are feeling and that they are fit to work. This approach forms part of a ‘return to work interview’ process which is discussed below.
Organisations may be familiar with the concept of conducting return to work interviews (RTWIs) for employees returning from a period of workers compensation but results ofAi Group's Absenteeism & Presenteeism Survey 2015showed that organisations find them a most effective tool in the management of other types of absence.
It is important that a RTWI is conducted after every unscheduled absence and that a supportive and non-judgmental approach is taken by the manager. Itcan simply bebrief discussion with an employee who has taken a single sick day, involving welcoming the employee back and enquiring as to whether they are feeling better. It shows the employee the organisation cares about their wellbeing, but also signals to the employee that the absence was noticed. In a workplace with low levels of management interaction, some employees may be inclined to take more days off if they feel that absences will not be noticed and no one will question their absence on their return.
To discuss this topic further, members are encouraged to pleasecontact usor call the Ai Group Workplace Advice Line on 1300 55 66 77.
