Asking for a medical certificate to explain an absence is a common practice, but what happens if you need more information? How far can an employee pry into an employee’s medical history?
An employer can ask an employee to provide evidence to prove they took personal leave because they were unable to work due to illness or injury, or because they had to care for a family or household member.
That evidence usually comes in the form of a medical certificate, but in 2018, a decision by the Fair Work Commission solidified an employer’s right to reject a medical certificate if it is inconsistent with a previous opinion or ambiguous.
If the medical certificate is provided in support of a request to return to work performing lesser or modified duties, the employer is entitled to request that the certificate outline how and when the employee can return to normal duties.
With COVID-19 upending a lot of employer’s approaches to health, HRM thought it was worth revisiting medical certificates to understand when employers can ask for more information and when they might be crossing a line.
Providing a safe workplace
The main reason for an employer to ask for more medical information is to provide a safe workplace, says Charles Power, Partner at law firm Holding Redlich.
“If you need to make an adjustment for the employee to meet your legal obligations then it’s reasonable to ask for more medical information if the certificate just says the employee is unfit for regular duties,” says Power.
“You might also need to make adjustments to keep other employees safe [i.e. if the medical condition is contagious], so that’s also a time when you can ask the employee or a doctor to outline what the employee needs.”
When seeking additional information, an employee can either provide it themselves or grant their employer permission to contact their treating practitioner. This extra information could outline any limitations they might have (e.g the employee can only do light duties) or to clear up confusing or contradictory information (e.g the advice suddenly changes from light duties to ‘all clear’ when the employee is told they might have their hours reduced).
“[To provide another example], in the case of a paramedic who is suffering from poor mental health, the employer may be able to seek information to be satisfied the employee is able to deal with stressors experienced on a daily basis when called to deal with often harrowing situations,” says Charles.
It’s understandable that employees may not feel comfortable sharing their medical information, says Power. In these instances be sure to remind them what you need from them is less about their medical history and more about preparing for the future.
“As the employer, your focus is that the employee has the capacity to do their role,” he says. “If they don’t have it now then you can ask for a medical professional’s opinion as to when they will have that capacity.”
So what if you do need more information about an employee’s capacity? Can you send them to get tests conducted?
Yes, if it’s directly related to their role, says Power.
“If an employee isn’t meeting the requirements of their role and there might be a medical issue that could explain it, then there is an obligation on the employer to understand the nature of the impairment,” he says.
“But the enquiries need to focus on whether the employee can perform the essential functions of the job, with or without reasonable adjustments.”
For instance, in 2015 a corrections employer was found to have discriminated against a probation and parole office who was prevented from returning to work on grounds she could not perform the inherent requirements of the role.
The Court found the employer could not establish what those inherent requirements were and had failed to explore whether reasonable adjustments could enable the employee to return to work.
“Seeing on social media that someone went to the movies on their ‘sick day’ doesn’t mean they weren’t sick.” – Charles Power, Partner at Holding Redlich
Be careful with how you use the information
If an employee does provide further medical evidence to explain an absence and it reveals something about their health, HR should be careful who they share that information with.
“However, there is something called the employee records exemption. You can share that information if it pertains directly to the employment relationship.”
For example, say an employee, Gabriel, needs to be seated away from a window due to a medical condition they have. Gabriel is about to be redeployed to a new department in a different office building. The employee’s records exemption would allow for HR to explain to Gabriel’s new manager that they have a medical condition that needs certain requirements.
Another way to think about it is to consider what would happen if an employee catches COVID-19. Under the Privacy Act an employer is within its right to share with the greater employee cohort that someone has COIVID-19. You may not need to reveal the name of the employee to everyone, but you can tell those that are ‘need-to-know’, for example those who would count as a close contact.
It’s important to take care about sharing employee information because breaching the Privacy Act is a serious offence. In 2019, an employer was fined $60,000 for sharing employees’ personal information with a local union chapter.
“The employer can also be subject to remedial orders to pay compensation or change their practices,” says Power.
But what about those times when you just don’t trust the medical certificate?
Some employers use medical certificates to make sure the employee is ‘actually sick’. However, this is tricky because personal leave can be used for issues beyond the sniffles.
“Seeing on social media that someone went to the movies on their ‘sick day’ doesn’t mean they weren’t sick,” says Power.
For example, personal leave can also cover mental health issues, he says. Perhaps seeing a movie is the self-care an employee needs to improve their mental health.
Another concern some employers have is that the employee is getting their medical certificate from a friend or family member who is a medical practitioner. Unfortunately, in most instances you can’t specify who an employee should get their medical certificate from, says Power.
“The general rule is that the employee should see their usual doctor.
“It could be reasonable to ask them to see a different doctor only if their current one isn’t providing the information you need to accommodate them in the workplace.”
At the end of the day, a medical certificate is about peace of mind for employers and employees alike. If the certificate doesn’t provide that then it’s time to chat to the employee about what you require from them, so you can create a healthy workplace for all employees.
Got a question about employment law? Check out AHRI:ASSIST to get bespoke advice for your workplace issues.