We all know that full and part time employees are entitled to paid personal leave, with minimums set out in the National Employment Standards (NES). What a lot of employers and employees struggle with is what is actually covered and how to account for leave they utilise, so we are going to take a look at a couple of areas that cause the most confusion.

Appointments

First up, one of the key areas that is misunderstood as it relates to personal leave, is whether or not it can be accessed for appointments. We mean things like physio, doctor, specialist – the regular kind of visits to deal with treatment of an ongoing issue or to get a script or perhaps to start an investigation into a worrying health matter.  These appointments are NOT covered by personal leave.

I know, the proverbial cat has just been set amongst the pigeons for some of you.

Personal leave is for when an employee is unable to attend work due to being unwell or injured or caring for an immediate family member or household member who is unwell or injured.  If you have someone who is heading to the doctor and they are off sick with bronchitis, then yes, personal leave covers them. But if they have an annoying cough they are getting checked out by the GP but they are on deck to work, the appointment that is set to occur during business hours is not an eligible use of personal leave entitlements.

By all means, employees can access annual leave, utilise accrued time in lieu, take leave without pay or make up the time later in the day or at another agreed time but ultimately, personal leave entitlements are not for regular appointments. 

I think we all know how hard it is to get into GP’s these days and specialists from all disciplines seems to only work on a Wednesday when the moon is in mercury retrograde and an orange cat has walked down the street, so allowing some flexibility and enabling your employee to access the medical support they need can go along way to building loyalty and a positive workplace culture.  But let’s be clear, you are under no obligation to allow your employee to access their personal leave for appointments that aren’t related to a situation that is preventing them from working on that day.

Medical certificates

It is your right as an employer to require a medical certificate from employees when they access their personal leave.  Over the last few years, there has been a proliferation of online sites or places that provide telehealth only appointments that offer medical certificates that are faster and cheaper than heading to the doctor. We’ve been asked about these quite a bit lately and the main question is around whether or not employers have to accept these online medical certificates.

There are some very specific laws around the validity of a medical certificate, and they are they are only valid IF they meet all of the criteria and guidelines set by the Medical Board of Australia and the Royal Australian College of General Practitioners (RACGP).

There are quite a few must haves to be valid, but the most important ones are:

• The certificate must be signed by a Dr who is currently registered to practice medicine within Australia and is registered with Australian Health Practitioner Regulation Agency (AHPRA).
  
  
• The consultation must adhere to professional standards for telehealth assessments and must include including taking a full and complete medical history.
  
  
• Making informed clinical judgments based on comprehensive medical history and current information.
  
  
• Online consultations must involve real-time communication via phone or video to facilitate a comprehensive assessment.
  

Further, it is a legislative requirement that medical practitioners working in general practice can only perform a telehealth service where they have an established clinical relationship with the patient, with limited exemptions.  Meaning, you shouldn’t be able to secure a medical certificate from a telehealth appointment from a random service provider you’ve never accessed in person before. The reality though is that anyone CAN source a medical certificate outside of these parameters, but you do not have an obligation to accept it as valid evidence of the person’s entitlement to be off work, or to access their paid personal leave benefit.

There are also some specific requirements that come under individual state and territory laws as well but the key points above are the most important for this discussion. Given the legitimate concerns about these online and telehealth services and the fact that they are not meeting all of the legislative requirements for the provision of medical certificates, we suggest you do not accept them.

We recommend that you are very clear with how you address what constitutes an acceptable medical certificate within your personal leave policy so that all employees are aware of the requirements. Given the proliferation of these unchecked and non-compliant offerings, we also advise that you update your personal leave policy as a matter of priority as we are seeing increased usage.

Statutory declarations

You should also note that an employee has the right to provide a signed and correctly validated statutory declaration in lieu of a medical certificate and this must be accepted. From a Fair Work / employment legislation perspective, in order for a medical certificate to be accepted it must satisfy a reasonable person of its validity. A statutory declaration is a legal document so this would almost always satisfy the ‘reasonableness’ question.  

Seems harsh

To some, it may seem harsh that personal leave policies need to be almost prescriptive as to what type of medical certificates will be acceptable. We are in no way suggesting that everyone using the online sites is trying to scam a sickie; we know they may provide a cost and time effective solution to expensive and hard to access GPs.

However, this is about establishing legitimate and fair ground rules for all employees.  It is also about protecting your business from the very real financial burden that can occur when personal leave is abused. One of clients recently assessed an online platform and once they popped in their name and paid a small fee, they had a medical certificate provided to them in under 2 mins with no consultation, questions to answer or contact with the organisation at all.  Bam! It just arrived instantly.

Key to remember is that ALL employees are entitled to personal leave when they are sick, injured or need to care for someone, and they should feel that they can access the time needed to recover so they can be fit and well for all aspects of their lives!

Contact the HR Staff n’ Stuff team for support in updating your personal leave policies or drafting new policies that provide clear information for your team – we’re here to help when you need us!