In many cases when an employee is absent and provides a medical certificate or other documentary proof in support, employers are still suspicious about the genuineness of the absence.
The question remains: when can an employer challenge or not accept the validity of a medical certificate provided by an employee to explain an absence from work?
THE STARTING POINT
The general rule is that a medical certificate or other documentary evidence specified as evidence of illness or injury must be accepted as evidence of that illness or injury.
An employer who is merely suspicious about the validity of a medical certificate will generally be obliged to accept the certificate as valid, notwithstanding those suspicions, unless circumstances exist that enable the employer to challenge or reject the certificate. Generally it will only be where unusual or exceptional circumstances exist that an employer can reject the validity of a certificate.
DEVIATION FROM THE GENERAL RULE
A situation where the general rule may not apply involved a case where a certificate did not diagnose a medical condition, there was evidence the employee attended a social event and the certificate was dated five days after it was issued. Unusual or exceptional circumstances were found to exist.
However in another case, rejection of a medical certificate issued from an overseas doctor immediately following annual leave taken overseas was insufficient to justify rejecting the certificate.
SICK LEAVE CERTIFICATES AND DISCIPLINARY ACTION
Another area where employers often question the genuineness of medical certificates is where the employee produces one to delay or prevent a disciplinary or performance management process from being undertaken. In those circumstances, an employer cannot simply refuse to accept a medical certificate and continue with the disciplinary or performance management process simply because they are sceptical about the validity of the medical evidence.
The employer may mount a challenge where there is objective evidence that contradicts the medical certificate.
Alternatively, employers may consider other means to continue with the disciplinary or performance management process. For example, if the medical certificate states that the employee is too sick to attend work during a disciplinary process, and the employee therefore does not attend a disciplinary meeting, employers might consider requiring a response from the employee in writing rather than attending a face-to-face meeting (as this may not be contrary to the employee's medical restrictions). This is particularly so if the incapacity is due to an illness or injury that would not affect the employee's ability to participate. For example, a back injury preventing an employee performing their duties physically will not prevent them dealing with a disciplinary issue. While greater care needs to be taken if the employee is suffering from a stress-like condition, even in that case, responding in writing may be appropriate, depending on the nature and cause of the stress.
An employer may also consider obtaining an independent medical assessment from a treating practitioner to examine whether the employee can nevertheless participate in the disciplinary or performance process, even though they have a medical certificate stating they are unfit for work. An employer's ability to do so is strengthened when the medical certificate does not specifically state the medical condition or address the employee's ability to effectively participate in the disciplinary or performance process. An unreasonable refusal by the employee to undertake that medical assessment may, in some circumstances, enable the employer to terminate the employment for failing to follow a lawful direction, provided an appropriate process is followed. Where the inability to attend the meeting or respond in writing continues beyond a short period, the employer is in a stronger position to require the medical examination.
Dealing with employees who are absent from work or otherwise unable to perform their duties creates the perfect storm of legal obligations. Discrimination, adverse action, occupational health and safety, unfair dismissal, privacy, national employment standards, common law and enterprise agreements converge to make it one of the most challenging issues facing employers.
Understanding the obligations and adopting some simple rules gives employers the tools to navigate through the issues.
- Medical certificates are evidence of illness or injury and must be accepted unless there is sound evidence, rather than suspicion, to the contrary.
- Employees can be lawfully directed to undergo a medical examination in circumstances including where they have been absent for a long period of time, or have numerous unexplained absences, or there are genuine safety concerns.
- Medical evidence an employer relies upon must be current, focused on the inherent requirements of the position and consider the prognosis for the future.
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