As we enter flu season, we often encounter common issues such as employees coming to work while sick, opting to work from home instead of taking personal or carer’s leave, and needing clarification on the evidence requirements for personal or carer’s leave.

Despite the increased awareness post-COVID that it is not acceptable to come to work while ill, some employees may still do so. This could be due to various reasons such as:

• Insufficient leave accrual
• Sense of obligation
• Management expectations
• Perception that working while ill is the lesser of two evils: ie, returning to a backlog of work after taking leave isn’t worth it.

To minimize the likelihood of employees coming to work while ill, an employer can take the following steps:

• Ensure that the actions and words of the leadership team align with this policy. This involves consistently applying the policy and supporting employees in taking necessary leave.
• Establish a clear policy outlining expectations regarding sick leave.
• Communicate this policy clearly to all employees.

What can an employer do if an employee is ill when they arrive at work or develops symptoms of illness during the day or shift?

• The employee can be required to leave the workplace if their symptoms create a risk to health and safety.
• Full-time and part-time employees can be given the option of taking paid personal leave.
• For Casual employees, where symptoms develop during day or shift, casuals may be entitled to a minimum payment under an award or enterprise agreement, but otherwise aren’t entitled to paid leave or payment for rostered hours not worked.

When is it appropriate for an employee to work from home instead of taking personal/carer’s leave?

• If the employee can work safely and to an adequate standard
• If not, it may be appropriate to encourage or direct the employee not to work
• Considerations include: Employee’s safety, Nature of the employee’s role and tasks for the day
• For caring – the level of care and supervision required
• Risks to the business
• Effect of condoning presenteeism
• A policy can include guidance on this issue

What are the evidence requirements for personal/carer’s leave?

The national employment standards only states ‘evidence that would satisfy a reasonable person’. So, from here you can look at the enterprise agreement, the employment contract or the company policy for information about entitlements and guidance about evidence.

What is “Evidence that would satisfy a reasonable person”

It depends!

A medical certificate issued by a doctor after an in-person or appropriate telehealth consultation will almost always be satisfactory (but can be challenged in some cases).
Other forms of evidence may also be satisfactory depending on the circumstances include Statutory declarations, Pharmacist’s certificates and Online medical certificates

What if an employee doesn’t provide evidence when required?

First, double-check whether the employee is required to provide evidence (according to the enterprise agreement, contract, or policy). Consider the reason given by the employee for not providing evidence. If no reason or an inadequate reason is given, the employee is not entitled to personal/carer’s leave. Breaches can be treated as disciplinary matters. Be mindful of general protections in the Fair Work Act when addressing issues related to personal/carer’s leave.