Considering 81 per cent of Australian full-time workers have admitted to taking a sick day when they’re not ill, it’s no wonder bosses are wary of employees who “chuck a sickie”. But how far can they go to make you prove that you’re really too sick to work? Is it legal for your employer to order you to get a medical assessment?
Medical examination image from Shutterstock
Under the Fair Work Act 2009 Section 96, all legally employed full-time workers in Australia are entitled to 10 days of sick and carer’s leave every year. This is also known as personal/carer’s leave. To take the leave, he or she must not be “fit for work because of a personal illness, or personal injury”. They can also use the leave to take care of a family member or a member of their household who is sick.
According to the Fair Work Ombudsman, a worker must inform their employer that they’re going to take sick leave as soon as possible and may be required to tender evidence as to why they’re taking the time off. This includes medical certificates.
The Fair Work Ombudsman highlights that:
An employee who doesn’t give their employer evidence when asked may not be entitled to be paid for their sick or carer’s leave. A workplace policy or registered agreement can specify when an employee has to give evidence to their employer and what type of evidence they have to give.
But what if a medical certificate isn’t enough? There have been cases in the past where employers have demanded workers to undergo medical assessments with doctors of the company’s choosing. Generally speaking, there is no set rule as to what evidence you give to your employer to prove you were sick unless clearly stipulated in a modern award or enterprise agreement.
Companies can also write into these award and enterprise agreements conditions as to when they can request an employee to undergo a medical assessment. This was confirmed in the Australian and International Pilots Association v Qantas Airways Ltd  Federal Court case.
An employer does have the right to write provisions into a work contract that allow them to demand a medical assessment. That doesn’t mean your bosses can write in ridiculous and unreasonable clauses such as making you take medical examinations after you take just one sick day and dismiss you if you don’t comply. The provisions are subject to the Fair Work Act 2009 requirement that they are applied in a reasonable manner.
For example, if you take a sick day before or after a public holiday weekend, that could be considered suspicious and it would be reasonable for your employer to request a medical examination. Same thing applies to if you take an extend period of sick leave without specifying the reasons.
Many of us may have barely skimmed our employment contracts when we were first hired. It would be wise to go through the details of your work contract carefully to see if your company is entitled to order you to go through a medical examination under certain circumstances to justify your sick days.
Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.