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Working during sick leave: is it illegal?

6 min read  |   17 May, 2022   By Rachael Down

    

But where does that leave you as an employer? Are they able to still work while signed off sick? What if they recover quicker than expected and can come back to work earlier? What if they are self-certifying, and is it different if the doctor has signed them off?

How much sick leave can your employees take?

The amount of sick leave your employees are allowed to take will depend on how much they work. 

On one hand, full-time employees must have at least 10 days of personal leave. Meanwhile, part-time employees are only entitled to a pro-rata amount, which will depend on the hours they work. 

By contrast, if you hire a number of casual workers, you do not have to pay any personal leave.  

How does sick leave accumulate?

Both full and part-time employees accumulate sick leave during each year of employment. This starts accumulating from the employee's first day of work and is based on their ordinary working hours. 

Sick leave also accumulates when an employee is on: 

  • Annual leave
  • Community leave
  • Long service leave

However, your employees' sick leave doesn’t accumulate when they are on unpaid leave, unpaid sick leave, unpaid parental leave or unpaid family and domestic violence leave. 

To give yourself a better understanding of how leave works, and what leave is available, explore our types of leave guide. 

Getting signed-off sick

The Fair Work Act states that an employer can require an employee to provide evidence of sickness that ‘would satisfy a reasonable person’. 

Although this may be on the vague side, it means any documentation that an employee provides for their extended period of illness will be considered as evidence they can be signed off sick, as long as it ‘would satisfy a reasonable person’. 

Ultimately, you want your employee to have the leave of absence issued by a medical practitioner—defined by the Fair Work Act as ‘a person registered, or licensed, as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.’ 

However, your employee can provide a certificate from another health professional. This is a much broader term which takes into consideration osteopaths, chiropractors, dentists, nurses and occupational therapists. As long as the certificate ‘would satisfy a reasonable person’ then the certificate will be valid. 

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What to do if an employee is signed off sick 

If an employee is signed off sick you might wonder if you should leave them to recover in peace, if you’re allowed to contact them, or even if they should be working at all. There might be work-related matters you really need to talk to them about and projects that need handing over, even if you really don’t want to bother them. The question is, where does that leave you legally? 

The law and employee rights 

The simple answer is there is no one right answer.

There is protection for employees who take a prolonged period of absence because of sickness. This is in order to stop them from being dismissed unfairly. 

If the employees can provide evidence of their illness or injury, they are protected from being dismissed if their absence is more than three consecutive months, or they’ve used all their paid sick leave.

What happens when an employee is away longer than 3 months?

Without evidence of illness or injury, your employee will no longer be protected from being dismissed if: 

  1. Their absence is more than 3 consecutive months
  2. Their absence is more than 3 months in total over the last 12 months and they have used all their paid sick leave 

Ultimately, what happens depends on the circumstances. It’s sensible to say exercising a bit of common sense and being cautious is a good idea. If the employee has valid evidence, think about whether it is an urgent matter. Could it wait until they return? Are you putting the employee under pressure to return before fully recovering? Could it be perceived as harassment or will their illness be aggravated by your contact? 

You need to consider all these aspects before contacting them. On the flip side, a phone call asking how they are can be a very positive thing, it shows you care and can actually aid recovery.

What to do if an employee works when signed off sick

The question of whether an employee can work while signed off is also not cut and dry. It is possible an employee might be too ill to make it into the office but can work remotely from home. Although it isn’t strictly illegal to work when off sick, if they aren’t fit to make it to the workplace, then they are arguably not fit to work either.

How to manage sick employees who work from home (WFH)

If your employee works from home regularly, and opts to do that whilst ill, then they could still be considered working. If you find they are working while they are signed off, either of their own volition or through the tacit consent of a manager, you may want to ensure this stops until they are fully recovered. Speak to both employee and manager to make it clear they should not be working. 

One way to make certain everyone knows what should happen in the event of sickness is to include it in your sickness absence policy. You may wish to specify that if they phone in sick or are signed off by a doctor they are off sick and should not work under any circumstances. You can track their instances of sickness using an absence management system to ensure you're keeping on top of when these occur. However, you may also include clauses which specify how, when and after how much time an employee will be contacted to discuss work-related matters, their recovery and returning to work.

From an insurance perspective, it also makes sense to have such a policy in place. If you continue to allow an employee to work while signed off it could represent a breach of your duty of care as an employer. That in turn, could make you liable for further damage an employee suffers if they continue to work whilst sick. 

If an employee does want to return to work while signed off, it’s good practice to get clearance from their doctor first that they are fit to carry out certain duties at work. Their doctor may also suggest ways they can return to work, but their work can be modified to allow them to do so.

Streamline the way you manage leave

Our Leave Management tool simplifies the way you manage your leave and absences. Easily set different allowances by employee type, combine your payroll for automatic holiday payments and quickly keep track of who’s off and when. 

Quit the admin and start focusing on the important stuff. Try Breathe for yourself today.

New call-to-actionDisclaimer: This document contains general information and is also not intended to constitute legal or taxation advice. If you need legal or taxation advice, we recommend you speak to a qualified adviser.

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