An employee calls in sick. They provide a medical certificate. A few days later, they are still away.
For employers, managing employee illness can become complicated quickly. Questions about medical evidence, repeated absences, performance, return-to-work arrangements and whether an employee can continue in their role can all create legal risks if handled incorrectly.
In Australia, personal leave is a protected workplace entitlement. Employers need to balance legitimate business needs with their obligations under the Fair Work Act 2009.
-
Employees Have a Right to Personal Leave
Full-time and part-time employees can take paid sick leave when they cannot work because of a personal illness or injury. Paid sick leave generally accumulates progressively and unused entitlement carries over from year to year.
Employers should therefore avoid treating sick leave as a favour or suggesting that employees should attend work when they are genuinely unfit.
The focus should instead be on following appropriate notice, evidence and workplace management processes.
-
Can You Ask for a Medical Certificate?
Yes, employers can ask employees for evidence supporting their personal leave.
Importantly, the evidence requested must be reasonable in the circumstances. A medical certificate or statutory declaration may be acceptable evidence, and an employer can request evidence even where the absence is for only one day or less.
Employers should also check the applicable modern award, enterprise agreement or employment contract because additional requirements may apply.
A blanket rule such as “every Monday sick day requires a doctor’s certificate” should be carefully reviewed rather than automatically applied.
-
What If You Think the Employee Is Abusing Sick Leave?
Suspicion alone is not enough to justify disciplinary action.
If an employer believes an employee is misusing personal leave, it should investigate the circumstances objectively and follow a fair process.
This may involve:
- Reviewing attendance records
- Checking whether required evidence was provided
- Speaking with the employee
- Identifying patterns of absence
- Reviewing relevant workplace policies
- Giving the employee an opportunity to respond
Employers should avoid making assumptions about an employee’s medical condition or accusing someone of dishonesty without appropriate evidence.
-
Be Careful With Performance Management
Illness and performance are not necessarily the same issue.
An employee who is temporarily absent because of illness should not automatically be placed into a disciplinary or performance management process simply because they have taken personal leave.
The timing and reason for any adverse action can create significant legal risks.
Under the general protections provisions, being absent from work because of sickness or injury can be a prohibited reason for adverse action. The Fair Work Commission specifically identifies dismissal because an employee is away due to sickness as an example of a potential general protections issue.
Employers should therefore obtain advice before taking disciplinary or termination action where illness or personal leave is involved.
-
What About Long-Term Illness?
Long-term absences require particularly careful management.
Employees may have protection from dismissal because of illness or injury where they are absent for less than three consecutive months, or less than three months in total over the previous 12 months, or while they are still using their paid personal leave.
This does not mean an employee can never be dismissed because of their capacity to work.
However, employers need to distinguish between dismissing someone because they took protected sick leave and taking lawful action based on an employee’s ongoing capacity, operational requirements or another legitimate reason.
That distinction can be legally significant.
-
Keep Communication Open
Long-term absence should not mean that communication stops.
Employers can appropriately communicate with employees about matters such as:
- Expected return-to-work dates
- Workplace arrangements
- Evidence supporting leave
- Return-to-work planning
- Reasonable adjustments where appropriate
However, employers should respect privacy and avoid requesting unnecessary medical information.
The objective should be to understand what is reasonably necessary to manage the employment relationship, rather than seeking an employee’s complete medical history.
-
What Should Employers Do?
When managing an employee on personal leave, employers should:
- Follow the Fair Work Act and applicable award or agreement.
- Apply evidence requirements consistently and reasonably.
- Keep accurate records of leave and communications.
- Avoid making assumptions about an employee’s health.
- Separate genuine performance issues from protected leave.
- Consider whether disability discrimination or general protections issues may arise.
- Obtain legal advice before taking disciplinary or termination action involving illness.
Need Help Managing Personal Leave?
Managing sick employees requires more than simply checking whether they have enough leave available. Employers must consider workplace rights, evidence requirements, privacy, discrimination and potential general protections risks.
If you are unsure how to manage an employee’s ongoing absence, talk to NB Employment Law before taking action. Early legal advice can help your business manage the situation fairly while reducing unnecessary legal risk.