Leigh: Hello and welcome to the Better Business Podcast Essentials Update, brought to you by Employsure. I’m your host, Leigh Johnston, and in this series we examine a key issue in the world of employment relations. For this episode, we take a look at employees and medical certificates, and I ask the question, “Can employers ever reject a medical certificate?”
Leigh: All employees are going to take sick leave at some point and most businesses will have a policy around supplying a medical certificate, but I was curious, are there ever any legitimate grounds to reject a medical certificate? As it turns out, there are, under certain circumstances.
Leigh: Here to help us understand how medical certificates work is our resident employment relations expert, Thorunn Arnadottir. Thorunn, great to see you again.
Thorunn: And you too, Leigh.
Leigh: Let’s jump in. Is it ever okay for an employer to reject a medical certificate?
Thorunn: When an employee takes personal or carer’s leave, we should be looking for evidence that would satisfy a reasonable person that the leave was taken for this purpose. Generally, a medical certificate signed by a medical practitioner would satisfy a reasonable person that an employee was unfit to attend work. In most cases, it has to be accepted by an employer and processed as personal carer’s leave.
Thorunn: However, there are instances where an employer might be tempted to reject a medical certificate. This could be for a range of reasons. It could be a situation where a medical certificate looks misleading or dodgy. Maybe the dates in it don’t align with the dates of absence, or maybe it was backdated, or the dates appear to be altered.
Thorunn: There could be other reasons why an employer may want to reject a medical certificate. Perhaps a grievance or dispute between an employee and an employer is unresolved, and this has impacted on the mutual trust in the relationship. Or, maybe the employee has taken too much leave, which has impacted on the operational requirements of the business.
Thorunn: Each circumstance is different and as we are often dealing with legal protections available to employees, like adverse action or unfit dismissal, we need to consider the employee’s workplace right to take personal carer’s leave and therefore tread with caution. Before confirming whether we can reject a medical certificate, the reasons for doing so should be explored.
Thorunn: In fact, it’s absolutely necessary to establish if there is a valid reason to reject a medical certificate and consider the evidence available to support these grounds.
Leigh: Basically it is okay for an employer to reject a medical certificate in certain circumstances?
Thorunn: Yeah, that’s right. It can only really be in very particular types of circumstances.
Leigh: If their situation meets these circumstances, how can they diplomatically inform a staff member that they won’t be accepting their medical certificate?
Thorunn: In rejecting a medical certificate and holding conversations about this, as I said, the employer should first consider the actual reason for wanting to do so. If it’s because an employee’s ongoing absence has been bad for business, or it’s bad timing, this isn’t going to be a sufficient reason to have a conversation and reject that medical certificate.
Thorunn: However, if it’s because let’s say the employee in question posted photos of them at a musical festival after calling in sick, and they told you that they were going to call in sick after you rejected their request for annual leave, there might be grounds to have that conversation about rejecting the medical certificate.
Thorunn: If there are grounds to reject the medical certificate, diplomatically raising a concern about it would become a case specific situation. Generally speaking, though, an employer might need to invite and employee to a meeting and ask them to clarify the discrepancies. Questions about discrepancies may be raised in a formal process. For example, in a disciplinary meeting where allegations of dishonesty may be put forward for the employee to respond to. Of course, ensuring procedural fairness is achieved to mitigate risks of a claim.
Thorunn: Bearing in mind, though, this is not always going to be the best approach. In other situations, it might be more appropriate to inform the employee that the medical certificate is insufficient and that they’ll need to obtain further information or clarification from their doctor. It might also be a case of requesting them to attend an independent medical assessment. For example, in instances where they go into unpaid leave for an extended period of time, and have no clear prospect of recovery.
Thorunn: Because an employee can raise a claim if they are targeted or denied their entitlements, professional advice should be sought to ensure the medical certificate can be challenged or rejected diplomatically.
Leigh: Once a medical certificate has been rejected, that may come as a surprise to the employee. What should the employer advise that staff member to do?
Thorunn: This largely depends on the circumstances. An employer would need to consider whether rejecting a medical certificate would result in the employee having unpaid leave processed, and then notify the employee if this is the case. However, before processing it as unpaid leave, and informing an employee of this, an employer may need to allow them a further opportunity to prove that their leave was for genuine reasons, that would satisfy a requirement for a paid entitlement.
Thorunn: If the leave does fall into unauthorized absence, the employer may want to consider taking steps to ensure it doesn’t happen again. This might involve an informal or formal disciplinary process.
Leigh: What is the criteria for a medical certificate, Thorunn? This isn’t a note from mom. What do employers need to look out for?
Thorunn: Leigh, I’m sure a lot of employers would prefer to just get a note from mom, but this would no doubt lead to a lot of questionable sickies. A medical certificate needs to be signed by a registered or licensed medical practitioner, and under the Australian Medical Association guidelines, a medical certificate should include the date at which it was written.
Thorunn: Where a medical certificate is backdated, there would need to be a good reason for this. A doctor would typically be considering the symptoms of an employee on the day that they present to an appointment, to warrant a period of backdated coverage. Otherwise, a backdated medical certificate could lead to a breach of the guidelines.
Thorunn: I would also suggest an employer always ask for the original medical certificate. I’ve come across bad photos of medical certificates where the dates of absence have been altered with a pen, but you don’t notice until you see the real document. I’ve also seen a medical certificate which was the exact same as a previous medical certificate provided, including a manual signature, however, a different date had been Photoshopped in.
Leigh: They had Photoshopped in the date?
Thorunn: Yes. Sometimes it takes a bit of detective work in making sure a medical certificate is legitimate, and an employer may need to go that extra step, and actually confirm with the medical center that the employee did attend on the date specified, and that the same medical certificate was issued.
Leigh: So Thorunn, can you tell us what actions are available to an employer who is in a situation where a staff member might be taking repeated sick leave?
Thorunn: So, having policies and procedures is a first proactive step to setting clear guidelines with the employees and what’s constitutes sick leave, along with a notice and evidence requirements. Employers should stick to their policies, and make sure they are following up with an employee who has a pattern of repeated sick leave.
Thorunn: This could involve confirming their expected return to work date, or next checkup date, reminding them to bring a medical certificate, and asking them to notify the company of any updates to their absence. Employees should also consider the circumstances of each case. Repeated sick leave can get complicated quickly, especially if it’s work related.
Thorunn: So, maintaining open communication and being supportive in facilitating their return to work should be considered. It’s always a good idea to hold return to work welfare discussions, too, and check up on their health and wellbeing. Make sure the employee is fit to return to their normal duties, and they’re not on medication that’s going to jeopardize their safety in the workplace.
Leigh: Are you aware of any instances when an employer has legally rejected a medical certificate? Can you tell us a little bit about their circumstances?
Thorunn: In a recent case, an employer rejected a medical certificate which had been requested after an extended period of unpaid leave. The purpose of requesting that medical certificate was to determine the employee’s fitness to return to work. But the employee brought in a medical certificate that had been very vague in its description. It said the employee was clear to return on light duties, no further information.
Thorunn: Based on a duty of care and an interest in ensuring the safe return to work of the employee, the employer rejected the medical certificate and asked for more information from the doctor, including the duties he was and wasn’t able to perform, how long he was expected to be on light duties for, and whether there was an explanation as to why he was suddenly fit for work when two other doctors had thought otherwise.
Thorunn: The Fair Work Commission supported the employer’s decision to reject the medical certificate after a number of failed attempts were made to get further information from the treating doctor.
Leigh: So that would be one of those situations when it was actually okay to reject a medical certificate?
Thorunn: Yeah, in this situation, it definitely was. There was a clear process of following up with the employee, trying to do the right thing, trying to get more information, trying to ensure their health and safety upon their return to work. However, the employee wasn’t very forthcoming, and the doctor wasn’t getting enough information, so the court did support the employer’s decision to reject it.
Leigh: Thorunn, it’s potentially a tricky issue for employers. I’m sure many of them think they just have to accept medical certificates as they’re presented, but this information is super helpful in making sure that they know their rights, and they actually can reject them in certain circumstances.
Thorunn: Yeah, that’s right. In most circumstances, it is very tricky to reject a medical certificate. I would advise any employer that is thinking of rejecting a medical certificate to definitely do their research and make sure that they’ve got a valid reason and enough evidence to do so, and perhaps even seek some professional advice and make sure that they’re doing it legally.
Leigh: Thorunn, that’s wonderful advice. Thanks so much again for joining the show.
Thorunn: Thanks Leigh. Take care.
Leigh: Well, that’s it for this month’s Essentials Update. A huge thanks again to Thorunn for joining the show and helping us understand an issue that perhaps a lot of business owners don’t know much about. Before I go, don’t forget that if you need help with your obligations as an employer, or just want some support on any aspect of workplace relations, give Employsure a call on 1300-651-415, to find out how we can help you.
Leigh: Or, you can visit our website, Employsure.com.au, where we have a stack of free resources for business owners. That’s it for this month’s Essentials Update. Thanks again for listening. I’m your host, Leigh Johnston, and tune in again next time when we tackle another key issue in the world of employment relations.