What evidence and notice is required for an employee to take sick leave?

With cold and flu season upon us, employees will be seeking to access accrued paid personal/carer’s leave (incorporating sick leave). Employers are often dissatisfied with the notice given by employees and the evidence provided to support the need for sick leave. We explore the requirements for employees to access paid sick leave under the National Employment Standards in the Fair Work Act 2009 (Cth) (NES) as well as some common issues employers have with the evidence provided. 

1.  How much paid sick leave are employees entitled to?

Under the NES, full time employees have access to 10 days of paid personal/carer’s leave per annum, which accrues progressively and accumulates from year to year (pro-rata for part time employees). This leave can be taken either:

1.  because the employee is not fit for work because of a personal illness or injury; or
2. to provide care or support to a member of the employee’s immediate family or a member of their household because of an illness or injury or because of an unexpected emergency. 

Not allowing an employee to access their paid personal/carer’s leave entitlement is unlawful under the Fair Work Act 2009 (Cth), and could result in civil penalties being awarded against the employer and individuals involved in the contravention if prosecuted. 
 

2.  What notice does an employee need to give of personal/sick leave? 

An employee has to let their employer know that they are going to take sick leave. This must be done as soon as practicable,¹ and may even be after the leave has started on occasion (for example, in an emergency situation where an employee (or their immediate family member or household member) is in hospital). When giving notice of taking sick leave, an employee should also specify (or an employer should ask) how long they think they will need to be away from work.

3.  Can an employer request a medical certificate?

Employers can ask an employee to give evidence to confirm why they have been away from work at any time. This includes employees who have only been absent for one day. An employee who doesn’t give their employer evidence when asked may not be entitled to be paid for their sick leave.

However, before requiring an employee to provide evidence of the need to take sick leave, employers should check the applicable employment contract, enterprise agreement or any relevant policies as these may specify when an employee has to give evidence to their employer and what type of evidence they have to give.

The NES don’t specify the type of evidence that needs to be given for sick leave. The NES simply provides that the evidence required needs to satisfy a reasonable person that the employee was genuinely entitled to take the leave.² Generally, medical certificates and statutory declarations are examples of forms of evidence that most employers will accept. A blanket requirement to provide a medical certificate for all personal/carer’s leave is likely to be unreasonable as there may be some circumstances where it is not reasonable or possible for an employee to obtain a medical certificate.³

4.  Does an employer have to accept a medical certificate that just says an employee is suffering from a “medical condition”?

Challenging the validity of a medical certificate is difficult to do. The employer must suspect there has been dishonesty on the part of the employee to challenge a medical certificate. For example, an employer successfully defended an unlawful dismissal claim after an employee was dismissed for taking sick leave (with a medical certificate) after an application to take sick leave to attend a football match was denied by the employer.⁴

In many cases, a certificate which simply states that an employee is suffering from a “medical condition and is unfit for work” is sufficient, particularly when the absence is only for a day or two. However, employers must make these decisions on a case-by-case basis.  

There is no requirement under the NES that a diagnosis be provided. The Australian Medical Association’s Guidelines on Medical Certificates 2011 (revised 2016) (AMA Guidelines) suggest that a medical certificate include the:

• Name and address of the medical practitioner;
• Name of the patient
• date of examination and date of issue; and
• date(s) on which the employee (or member of their immediate family or household) is unfit for work.

There may be situations where employers may reasonably and lawfully require more detailed medical information from an employee because of an employer’s obligation to provide a safe place of work⁵,  including where:

• there has been or will be an extended period of time away from work, or leave is required on a regular/ongoing basis;
• an employee is returning to work, or claims to have recovered, after an extended period of incapacity;
• workplace adjustments are required to accommodate persistent incapacity; or
• the employment is in a safety critical position or has statutory safety compliance requirements.

The Fair Work Ombudsman, who is the primary regulator of Australia’s workplace laws, generally takes a negative view of employers who, without good reason, seek to go behind a medical certificate. The Omdudsman does not consider it reasonable for an employer:

• to go to a medical appointment with an employee (unless the employee requests this); or
• to contact an employee’s doctor for further information about an employee’s medical condition.⁶

5.  Can a pharmacist issue a medical certificate for personal/carer’s leave?

Pharmacists are able to issue medical certificates for personal/carer’s leave under the NES to certify absences from work for personal/carer’s leave. They are unable to provide medical certificates for other types of leave such as parental leave. The professional bodies for pharmacists, the Pharmacy Guild of Australia and Pharmaceutical Society of Australia, have developed guidelines for pharmacists in issuing medical certificates.  

The guidelines recommend that pharmacists limit the provision of certificates:

for absence from work only in their areas 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

in circumstances where they can reasonably form a view as to the employee’s fitness for work, or as to the illness or injury of a member of the household or immediate family.

Generally speaking, the types of illness a pharmacist would be able to provide a medical certificate for would require no more than a few days away from work. The guidelines recommend pharmacists refer the patient to a doctor for serious illnesses.

6.  Will a backdated medical certificate be sufficient?

The term ‘backdated’ is confusing as what most employers would consider a backdated medical certificate is actually consistent with the AMA Guidelines. For example, it will be sufficient if a doctor sees an employee on a particular date but certifies that they were unfit for work prior to the date of examination – this is essentially a retrospective medical certificate. The Fair Work Commission has previously stated that a retrospective medical certificate can still “satisfy a reasonable person” and a unilateral rejection of a retrospective medical certificate represents a “dangerous intrusion by the employer into an area which, with respect, it has little expertise”. ⁷ Employers need to be careful not to “play doctor”.

It will not be consistent with the AMA Guidelines where a doctor dates a medical certificate on a day prior to the date that they actually saw the employee. 

Employers are able to make enquiries with the medical practitioner’s office to check the validity of a certificate. There have been several cases where employees have altered previously issued certificates and were subsequently unsuccessful in unfair dismissal claims due to their dishonesty. 

7.  Can personal leave be taken for medical appointments and elective surgeries?

This is a case-by-case proposition, recalling that leave is available to be taken if an employee is not able to work because of illness or injury, or, to support a family or household member similarly affected (or affected by an unexpected emergency). Generally speaking, a legitimate absence on personal leave will require medical incapacity and, if requested, reasonable evidence of this.

More broadly, employers should be careful in managing employees seeking to take time away from work to care for or support a member of their immediate family or household, whether or not direct medical incapacity is involved. Situations of those kinds may involve the exercise of “family or carer’s responsibilities”. This is an attribute for which further legal protections exist under both the Fair Work Act and Commonwealth, State and Territory anti-discrimination legislation. To treat a person adversely because they have sought to discharge family or carer’s responsibilities can be unlawful. The concept of “family or carer’s responsibilities” has also been interpreted to have a wide meaning.⁸

8.  Online consultations

Since the COVID19 pandemic, it has become common to attend a medical practitioner appointment by telehealth (either by phone or by an online platform).

So long as the medical practitioner issuing medical certificates to employees via these platforms are compliant with the AMA Guidelines, such consultations are “appropriate”. Again, questioning a medical certificate, without some other contrary and substantial evidence, may lead an employer into dangerous territory where it is accused of unlawfully intruding into an area where it has no expertise.

9.   Key points

Employers can take active steps in managing the notification and evidence of personal/carer’s leave, such as:

• communicating to employees the notification requirements for the taking of personal/carer’s leave;
• making general enquiries to ensure any medical certificate provided in support of personal/carer’s leave relates to the medical provider’s practice and expertise and that the provider is registered or licensed;
• specifying in policies when medical evidence is required and the types of evidence the employer considers reasonable; and
• requesting further medical evidence, where reasonable and appropriate.

There can be instances where an employer will legitimately be able to question a medical certificate, particularly where there is evidence of dishonesty. However, as an employee has a statutory workplace right to take personal/carer’s leave if the evidence and notice requirements are met, and employers do not generally have medical expertise, this should be undertaken with great caution and under advice.

For further information, please contact HopgoodGanim's Workplace and Employment team. 

1. Section 107(2) Fair Work Act 2009 (Cth).
2. Section 107(3) Fair Work Act 2009 (Cth).
3. See Construction, Forestry, Maritime, Mining and Energy Union v Wambo Open Cut Pty Ltd T/A Wambo Open Cut Mine [2019] FWC 7707.
4. Anderson v Crown Melbourne Ltd [2008] FMCA 152.
5. Swanson v Monash Health [2018] FCCA 538; Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
6. https://www.fairwork.gov.au/leave/sick-and-carers-leave/paid-sick-and-carers-leave/notice-and-medical-certificates, accessed 13 June 2023.
7. Maritime Union of Australia, The v DP World Sydney Limited [2014] FWC 2682.
8. See e.g., Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056