Legal advice: Can employers make employees get a doctor’s note when sick?

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help a woman whose boss is making her get a doctor’s note every time she’s sick.

QUESTION: I called in sick to work and told my boss I had a virus but it was actually a mental health day. My boss found out I lied and says I now need to get a doctor’s note every time I have a day off sick which costs me $80 in doctor’s fees. Is it legal for a workplace to make you get a sick note every time you’re ill? And is it OK that this measure has essentially been brought in as punishment after I was caught in an innocent lie. – Mel, Qld

ANSWER: We are sorry to hear that you needed a mental health day and didn’t feel comfortable speaking to your boss about the real reason you were off.

The Fair Work Act governs your employment rights and conditions, including sick leave policies. While there is no national law that requires employers to provide paid sick leave, many employment contracts and industrial/modern awards do include provisions for sick leave.

If you are covered by a modern award or registered agreement, then this can outline when you need to provide evidence in relation to sick leave, and what type of evidence is required.

Alternatively, your employment contract or employer’s policies will provide some direction so refer to these documents.

Employers are generally able to ask their employees to provide evidence that shows leave was taken because either: You weren’t able to work due to an injury or illness, or you needed to provide care or support to an immediate family or household member (due to their illness, injury or unexpected emergency affecting them).

An employer is able to ask for evidence for any period of time off work, even if it’s only one day.

If you don’t provide this evidence when you are asked to do so, you may not be entitled to be paid for your sick or carer’s leave.

That said, the type of evidence requested must be reasonable in the circumstances.

So for example, if you work in a medical environment and your employer says you are not permitted to work if you have a sore throat – even though you are otherwise not ‘sick’ – it may be unreasonable for them to expect you to attend a general practitioner to obtain a medical certificate.

Other evidence that may be acceptable is a statutory declaration, particularly if you are unable to attend a doctor.

Pharmacists are also able to provide a Certificate for Absence from Work, provided it is within their competency and professional expertise, such as minor ailments. However, they are not obligated to provide a certificate and can refer you to a doctor for that purpose. Often pharmacists will limit the certificate for one day off work.

If you believe you’re being unfairly treated, or that your boss is treating you unfavourably in more ways than just requiring a medical certificate for time off work, then this may constitute bullying. For further information and advice you can contact your union (if you’re a member), the Fair Work Ombudsman or a lawyer.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.

If you have a legal question you would like Alison and Jillian to answer, please email stories@news.com.au. Get more from Alison and Jillian on their Facebook page.

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