When Can Employers Reject a Medical Certificate?
A recent decision by the Australia Fair Work Commission in Gadzikwa v. Australian Government Department of Human Services, [2018] FWC 4878, has confirmed that employers are entitled to reject employees’ medical certificates. But not in all circumstances – only when they are too vague to honour legal obligations.
The matter heard by the commission in this case involved an employee who had been on extended unpaid personal leave due to a mental health condition. When the employee was due to return to work, he was advised he would need to provide his employer with proof of his fitness for duty.
The employee provided a two-line medical certificate that was extremely vague. As a result, the employer terminated the employee following an argumentative response after requesting further specifics.
After claiming for unfair dismissal, the commission rejected the claim and found the employee had failed to provide proper medical clearance;
- Firstly, the medical certificate did not include the nature of the duties the employee could perform or could not perform.
- Secondly, the medical certificate did not disclose the reasons why the employee is now fit for work when they were not fit previously.
- The medical certificate did not set out any dates or duration of time for any modified working arrangements. The employer therefore did not know when the employee could return to normal duties.
- The certificate was submitted two weeks late.
This case is one of a number of cases that set a precedent for employers. Employers may reject medical certificates that do not provide sufficient information to ensure the health and safety of its employees in the workplace.
However, that doesn’t mean you can be fast to terminate or take disciplinary action on employees. You must give them reasonable opportunity to provide more evidence to make things right.
More information about employers rights when an employee provides a medical certificate
So with COVID-19 and the emergence of telehealth, we have seen a number of queries from our clients in relation to medical certificates. Generally, these queries will come through one of three categories. The first category is, hey, an employee’s given me a medical certificate, but it’s pretty vague. It says that they’re unfit for work, but it doesn’t give me any information around the medical condition that they may be suffering from.
Category two is, ‘hey I’ve got a medical certificate from an employee, but it’s signed off by a health professional rather than a medical professional. For example, an acupuncturist or a naturopath. What can I do? Category number three is, hey, I’ve got a medical certificate from an employee and I’m not sure of its authenticity. I think this may be a fraudulent claim for personal/carer’s leave. What can I do? I’m going to go through all of those three categories in the next couple of minutes.
First category
Category number one. You’ve got an employee, they’ve given you a medical certificate and it says they’re unfit for work, full stop. And it doesn’t give you any information about the medical condition. What are your rights? Well, under the Fair Work Act an employer does have the right to require evidence of an employee’s claim for personal/carer’s leave, and that evidence needs to be evidence that will satisfy a reasonable person. Generally, a medical certificate from a GP or a surgeon or other specialist which states that they are not fit for work is going to be sufficient. The certificate doesn’t need to state the medical condition at all.
That said, you can, in some circumstances, ask for further medical information from the employee. So if the sick leave is recurring or ongoing for an extended period of time, or if you have other concerns around work health and safety and your ability to provide a safe workplace for that employee, then it’s on those WHS grounds that you may be able to ask the employee to provide consent for you to speak to their doctor.
Once consent is provided
Once they’ve provided consent, you could then speak with the doctor either by telephone or write them a letter asking them particular questions. For example, what is the medical condition? How does it relate to their work? Could they undertake their duties at the moment? If not, what reasonable adjustments could you make as the employer? And what’s the return to work plan for the foreseeable future? It could mean that the doctor, for example, says to you, yes, you need to provide reasonable adjustments. That may be, for example, a sit-to-stand desk, or they can return to work on Monday, Wednesday, Friday, but not on Tuesdays and Thursdays, they need a rest day. So if that report comes back with that information and is reasonable, it’s likely you’ll need to make those adjustments.
Now, if an employee doesn’t give consent for you to speak with their doctor, or if you can’t get in touch with the doctor after trying for long periods of time, then you may have the option to speak with an independent medical examiner. So in this case, you would direct the employee to see an independent doctor or specialist in whatever field of the medical condition. And then that specialist will assess the employee and give their view in a report.
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Category number two. A medical certificate signed off by a naturopath or an acupuncturist. Is this reasonable evidence to support this claim for personal/carer’s leave? And look, it’s a great question. The industrial relations legislation has toed-and-froed on this point. There was one requiring evidence from a medical practitioner and then it became a health practitioner. It’s just reasonable evidence, right?
My view on this is that it is a case by case basis. The first point of inquiry obviously is checking that the health practitioner that is signing off does actually have expertise in whatever medical condition they’re reporting to have.
So for example, if a chiropractor is signing off on a mental health day, you may have a question mark. However, if it’s a pharmacist signing off because of a rash, for example, then maybe it’s okay. That said, if the personal/carer’s leave is ongoing or recurring, etc you could still have the option of seeking further medical information. (As talked through in category one).
Category three
Category three. An employee has given you a medical certificate and you’re not really sure that it’s authentic. What can you do? So again, while you can’t contact a medical professional and ask for further information about the actual medical reasons without an employee’s consent, you can contact them to actually verify the certificate that’s been provided. So you can Google the clinic and make sure it exists. You can call them and check that they attended on that date. A check that they attended the doctor stated is also acceptable. And you can even send them a copy of the medical certificate and ask them to verify its authenticity.
Then there’s the case of an employee who provides a medical certificate for personal/carer’s leave, and then you see on Facebook that they’ve been attending a footy match with friends. Again, this is really going to depend on the reason for the personal/carer’s leave. For example, they might say they’ve broken their leg. And then you see video of them walking up a full flight of stairs to attend a footy match. That might be the basis for a conversation with them. However, what if they say they can’t attend work for mental health reasons and they then attend a footy match? A solution may not so cut and dry in this scenario.
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