Requesting a doctor's note: be careful what you ask for

by HRD08 Dec 2018

by Edward Cranswick

It’s understandable that HR managers can be reluctant to request a doctor’s note from an employee to justify time taken off work due to illness. For many, it can seem unnecessary, an invasion of privacy, or inconsistent with building a culture of trust and mutual respect with workers. And even if you do request a note – how do you know how much you’re supposed to know about an employee’s medical condition? Where do you draw the line? And what do you need to know to make sure that you maintain a safe, happy, and productive workplace for the employee and for everyone else?

To get to the bottom of such HR quandaries, we talked to Maddocks partner Karli Evans, who has over fifteen years experience in areas of employment law and industrial relations.

How much time must an employee take off before it’s acceptable to request a doctor’s note?
Technically speaking, the National Employment Standards (NES) under the Fair Work Act provide that an employee taking personal leave must, if required by their employer, provide evidence in support of the leave. This could be a doctor’s note or even a statutory declaration: “I think there’s a misconception that an employee has to be absent for several days or for an extended period before a certificate is required … you can ask for evidence in support of even a half-day’s leave. The employee also needs to provide notice of their intention to take leave to the employer as soon as practicable.”

But it’s not always as straightforward as that. While the NES enshrines the minimum requirements, the specific obligations of an employee may also be regulated by the terms of any applicable modern award, company policies or an enterprise agreement. When taking a ‘hands-on’ approach to managing an employee’s absences, you’ll need to adhere to any requirements set out in applicable instruments: “ … if it’s an employee with a pattern of medical absences, which is generally the case, then in addition to the requirements in the NES you should also be aware of any relevant requirements in the instrument that governs the employee – so it might be a contract of employment which incorporates a company

policy, or it might be a modern award, or it might be an EBA [Enterprise Bargaining Agreement], which may have a particular requirement in terms of the process for taking leave and requirement to produce evidence of illness.” But – she says – “the employer has the right to ask”.

Evans states that it might be a “bit over the top” for a manager to demand a medical certificate for every single one-off absence. But if a pattern of behaviour is emerging, it’s best to be consistent in requiring the employee concerned to provide evidence substantiating their sick leave from an early stage, as this both sends the message to the workforce that the business closely monitors leave, and also equips an employer with documentation which will be relevant for handling any subsequent performance management or other human resources issues that may arise later in respect of that employee.

“It becomes important to manage that where an employee has a consistent pattern of behaviour where they’re absent from work – and if you let the small matters go through to the keeper it becomes an issue when you’re trying to manage the employee more closely down the track.”

But generally speaking, a single sick day here or there is no cause for alarm.

As a side point, Evans notes that an employee of an American software company was recently applauded by her CEO on LinkedIn for taking a ‘mental health day’. The ensuing social media explosion on the issue resulted in extensive debate about the importance of psychological health and an employee bringing their ‘whole selves’ to work.

But if you detect an ongoing trend in attendance that suggests a broader concern with an employee’s health, it’s important to request medical certificates for every absence and in some circumstances, to go a step further and require a detailed medical report. This way managers are equipped with the necessary information to safely manage the employee and their workload and make any necessary adjustments. It also means that should the absences become an issue of concern in a later (at this stage unforeseen) legal proceeding, you have proper documentation of every relevant instance of medical absence.

Are there hidden or unexpected risks associated with asking an employee to supply a medical certificate?
Evans notes that pursuant to the NES, an employee does not necessarily have to produce a medical certificate. The employee only need provide evidence sufficient to convince a ‘reasonable person’ that the employee was genuinely entitled to the sick leave. A statutory declaration or even a letter or email may therefore constitute sufficient evidence for an absence.

Evans notes that there is potential for “risk that you could be seen as over-managing someone” if say a business on the whole takes a laissez faire approach to documenting absences but a manager insists on certificates only from a particular employee. This is obviously an undesirable outcome in terms of general employee engagement and building a workplace culture based on trust and respect. People don’t like to feel as if they’ve always got the boss looking over their shoulder or scrutinising every move.

But legally speaking, you also need to be aware that being too hands-on might also form part of the circumstances cited to substantiate an office bullying claim: “So it could feasibly pop up in the context of a bullying claim, where someone alleges that they were so closely managed in every aspect of their day that the conduct constituted repeated unreasonable behaviour, and so satisfies the actual definition of ‘bullying’ in the Fair Work Act.”

Although she stresses that this would need to be in conjunction with a range of other behaviours being exhibited toward the employee, such as unreasonable work demands, humiliating an employee or other unreasonable conduct – “it wouldn’t solely be the fact that somebody has asked for a medical certificate. And it’s important to note that ‘reasonable management action’ taken by a manager does not fall within the ambit of bullying under the Fair Work Act. So a manager can make decisions about poor performance, take disciplinary action, and direct and control the way work is carried out without such action falling within the parameters of bullying.”

The notification and evidence requirements of the NES acknowledge the need for an employer to know when and why an employee may be absent from work. These are reasonable expectations for an employer to have of their employee, given the demands that come with running a workplace. “Because at the end of the day – businesses need to run an operation, and it may be that you need to source another employee, or cover a shift, or ensure that a customer is serviced – so it’s reasonable to know when your staff are going to be there.”

How much detail can an employer ask an employee to provide regarding a medical condition?
It’s often our natural instinct to not want to ask too many questions when it comes to a worker’s sickness. It can seem like an invasion of privacy in an era where the collection of personal information is heavily regulated. But this is the wrong attitude to take, Evans says. Requiring precise detail of a medical condition is essential if you are to adequately respond to the situation in the best interests of both worker and workplace.

“Often clients will come to us with a bunch of certificates for sporadic absences over several months [from an employee] that say ‘unfit to work due to a medical condition’ which have been signed by one or more suburban GPs – which is entirely insufficient,” added Evans. “Because it gives you no insight into what the condition is, whether it’s a long term condition, whether it’s actually impacting their duties that they’re performing, whether you’ve got a safety issue in terms of them returning, what they can and can’t do, whether you’ve actually contributed to the health of the employee or otherwise because of a bad workplace culture, management of workload or other issues.”

Evans recommends that it’s best to send your employee to see an independent medical specialist so you can get proper detail of the condition and understand what the short-, medium-, and long-term ramifications are for the employee’s health and return to work. She stresses that employers have an overarching duty to provide a safe workplace – so it’s important to be prepared for a fairly direct conversation with the employee where necessary, so the business can do what’s in everyone’s best interests.

She cites mental health conditions as an example that is particularly relevant – both because there is an increasing legal focus on psychological conditions in the workplace and because they aren’t as easy to grasp as a physical ailment.

“For instance, mental health conditions are a significant issue in the current climate, and you might have someone who’s in a very stressful position in a customer-facing call centre role, or maybe they’re in a high pressure professional environment, and you’ve got associated issues like poor performance … you need to know how to manage that person, or what protections or supports you can put in place. Sometimes it may be sufficient for the employee to access the Employee Assistance Program. Other employees may need more extensive support, such as training, coaching and mentoring.

Hopefully, additional support is able to help the impacted employee remain a productive member of the team. But in the event that the employee’s performance remains a significant issue, and a separation is the only practical option, an employer may run into trouble if the employee brings a claim of ‘unfair dismissal’ – as while there may be a valid reason for termination in terms of poor performance or misconduct, the dismissal may be viewed as harsh, unjust or unreasonable in light of the employee’s mental health issues – particularly if there isn’t evidence that you’ve taken reasonable steps to support the employee in the workplace. Ticking the boxes at the start of a process ensures your interests as an employer are protected (to the extent they can be) should the working relationship deteriorate.

This is a particularly important consideration for larger employers: “It’s clear from the Fair Work Act and the decisions in the Fair Work Commission that the larger the employer, and the bigger the HR resourcing, the more that’s expected of business in terms of best practice in these issues.”

What’s a major trend in this area that’s been developing recently and that HR managers should keep an eye on?
Evans notes the greater focus on and concern for mental health issues in the workplace that has developed during the past decade especially. “WorkSafe have been much more proactive in prosecuting psychological hazards in the workplace – and there’s been a recognition that psychological hazards are just as significant as physical hazards.” She believes this to be “one of the issues of the future”, and tells me that the Fair Work Commission has displayed an increasing trend towards expecting employers – particularly large employers – to “take a very proactive approach if it looks like an employee has a mental health condition”. To cope with this development it is increasingly necessary to develop a sophisticated capability within HR to identify and manage mental health issues amongst the workforce at an early stage, including in the context of informal discussions with HR. This includes businesses cultivating a stable of outside experts to provide employers with reliable medical assessments of their employees where necessary. In addition: “Best practice employers will ensure that their HR function are trained by experienced mental health clinicians in an understanding of mental health issues. Because HR and other managers have often been criticised – profoundly criticised – in published decisions [of the Fair Work Commission] regarding how they’ve managed these issues in the context of a dismissal.”

The bigger picture is that the closer scrutiny and oversight in this area is a net positive, Evans believes, and has helped to foster important conversations surrounding mental health

in the workplace. But legally speaking, “it’s a difficult thing for employers to manage given the significant expectations put upon them. HR and line managers are not mental health clinicians.”

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