For everyone Understanding your rights and responsibilities when taking personal leave

One question that we get asked a lot in the Member Service Centre is: “Do I have to provide a medical certificate every time I take sick leave?”

Just like Schrödinger’s cat, the answer is both simple and complicated. But before we get into that, it might be important to take a step back and look at what sick leave actually is.

Sick leave is generally combined with carer’s leave to form a type of leave more formally known as ‘personal leave’. Sick leave can be accessed by an employee when they are ill or injured and are unable to work due to the illness/injury. This is distinct from carer’s leave, which can generally be accessed by an employee who needs to provide care for a family member who may be ill/injured (or, in some circumstances, needs care due to an unexpected emergency).

Depending on the Enterprise Bargaining Agreement (EBA) that applies at a workplace, the evidence requirements for an employee who wants to access personal leave can differ. And these requirements also differ based on whether the employee wants to access sick or carer’s leave.

In most circumstances, where an employee is ill or injured, a certificate provided by their doctor that states that they are unfit for work due to illness/injury (or words to that effect) and the dates that they are unfit, will be sufficient. However, there are also circumstances where statutory declarations can be used as evidence to access personal leave.

Most employers will allow short periods of personal leave (say one or two days at a time) to be accessed without the production of a medical certificate, but will require evidence of the illness/injury for longer periods of leave.

However, where they suspect an employee of trying to use their personal leave for something other than recovering from illness or injury, employers do have the right to ask that employee to provide evidence (certificate or stat dec) before approving the leave. There may also be a requirement in the EBA or in the employer’s policies to require an employee to provide evidence either on the first or last day of a term, or either side of a public holiday.

An employer can contact the doctor or clinic listed on the medical certificate to question its authenticity. It might also be worth noting that some employers have used social media posts as evidence that an employee may not in fact be ill or injured as claimed.

The MSC has assisted members in the past who have falsified or created fake medical certificates, or who have made false statements on statutory declarations. We know this goes without saying, but a member should never falsify a medical certificate or legal document. This can be regarded as fraud and risks your employment, criminal charges being brought against you, and potential loss of VIT registration, not to mention irreparable damage to your reputation.

So, getting back to the original question of whether employees need to provide a medical certificate to access sick leave. The ‘simple’ answer is that not all employees have to provide a medical certificate for all sick leave applications. However, an employer can require evidence due to the timing of the leave, or if they suspect the leave is not being taken for legitimate reasons.

Given the different leave entitlements and their varied evidence requirements, any AEU member who needs personalised advice regarding leave should call our Member Support Centre on 03 9417 2822.

Find our advice sheet on personal leave here.

The AEU has a comprehensive range of advice sheets covering common industrial and professional issues in every sector.

For all other work-related enquiries, AEU Victoria members can phone our Member Support Centre on 1800 238 842 or email [email protected], 8.30am-5pm Monday-Friday.

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