Convenience vs credibility: evidence for paid personal/carer’s leave in a digital age
The increasing availability of online medical certificates issued without either in person or telehealth consultation continues to raise practical and legal questions for employers managing requests for paid personal/carer’s leave under the Fair Work Act 2009 (Cth) (FW Act).
Thanks to technological advancements necessitated by the COVID-19 pandemic, individuals can now obtain medical certificates through online platforms by completing a questionnaire – without ever speaking to the signing medical practitioner.
A one-day medical certificate obtained online costs as little as $12.90.
While there is limited authority on the adequacy of online medical certificates as evidence in support of an employee’s request for paid personal/carer’s leave, recent decisions of the Federal Court of Australia[1] and the Fair Work Commission[2] have examined the persuasiveness of these online medical certificates in other contexts, such as assessing witness availability or applications for extensions of time. In those cases, online medical certificates were not accepted as evidence in support of the individual's:
- absence at court; or
- failure to file their application within the required statutory timeframe.
Despite the Fair Work Commission’s observation that ‘the ease of any member of the public now being able to obtain a medical certificate, without even speaking to a medical practitioner, raises significant questions about the evidentiary value of such certificates… [and that] such a system leaves itself open to abuse’, [3] the question still arises as to whether online medical certificates of this nature satisfy the evidence requirements for paid personal/carer’s leave in the FW Act.
Key takeaways for employers
In the absence of judicial guidance on this particular issue, employers should:
apply the FW Act test and assess evidence offered by an employee in support of a claim for paid personal/carer’s leave on a case-by-case basis;
consider the availability of other evidence in addition to the online medical certificate which may assist with this assessment; and
ensure that any relevant workplace policies or procedures retain flexibility to apply the test in the FW Act on a case-by-case basis, including to ensure that it is not limited in the way it assesses each application for paid leave.
For employers who have an enterprise agreement in place, it is also important to consider whether the enterprise agreement specifies any evidence that the parties have agreed would be acceptable evidence in support of paid personal or carer’s leave, and how that provision should be interpreted given the overarching framework provided for in the NES.
Are businesses required to accept online medical certificates as evidence in support of paid personal/carer’s leave?
Perhaps unsurprisingly, it depends.
The National Employment Standards (NES) in the FW Act establish that an employer may require evidence ‘that would satisfy a reasonable person that the leave is taken:
- because the employee is not fit for work because of a personal illness or personal injury affecting the employee (personal leave); or
- to provide care and support to a member of the employee’s immediate family or member of the employee’s household who required care or support because of:
- a personal illness or personal injury affecting the member; or
- an unexpected emergency affecting the member,
(carer’s leave).[4]
The test in the FW Act does not mandate a particular form of evidence and does not expressly exclude online medical certificates as acceptable evidence.
Rather, it requires an employer objectively assesses the evidence offered by an employee, taking into account all surrounding circumstances in each individual case. What might satisfy a reasonable person of an employee’s claim for paid personal/carer’s leave in one case, may not satisfy a reasonable person in another case.
How we can we help
Our Employment team has expertise advising employers on complex workplace compliance issues, including the interpretation of enterprise agreements and responding to applications for paid leave.
We work closely with clients to navigate sensitive employee management issues in a pragmatic way and encourage employers to contact our team where concerns arise regarding the sufficiency of evidence offered in support of a claim for paid personal/carer’s leave and the interpretation of their enterprise agreement/s.
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