“Why risk your job and your career? There’s no longer any need for a fake medical certificate when you can get a genuine medical certificate in 5 minutes online or from your mobile phone.”
So reads the advertisement from one online medical certificate provider.
Online medical certificate platforms claim that their value is in freeing-up an under-resourced health care system by providing a faster and easier service to patients with “minor” ailments and sickness.
How does an employee get their hands on an online medical certificate? Our investigations suggest that there are three main types of certificates available online:
1. some of the establishments allow a person to “buy an authentic looking replica doctor’s sick certificate”. (Seriously, this is the quote on a website);
2. some require a person to submit a form for assessment to receive their medical certificate; and
3. the majority of providers use an online form and Skype or equivalent face-to-face consultation system to deliver “tele-health”.
So are online medical certificates genuine fake, genuine, or just fake?
In late 2016, the Australian Medical Association (AMA) released revised guidelines which included an important addition relating to online medicate certificate services as follows:
“Doctors should avoid participating in “online medical certificates services” that certify illness, in the absence of a face-to-face consultation or a pre-existing doctor-patient relationship. This does not apply to appropriate tele-health consultations.”
The majority of online medical certificate providers rely heavily on the tele-health component to promote the legitimacy of their certificates. But what does “appropriate” tele-health mean in the eyes of the AMA exactly? In a position statement issued in 2016, the AMA said that tele-health consultations were appropriate:
• for patients living in rural and remote areas who cannot easily see a doctor face-to-face; or
• where a doctor considers the consultation is appropriate, having regard to the fact that consulting a patient online is less preferable than a face-to-face consultation and examination.
In short, it appears that the AMA will not completely denounce online medical certificate use given the benefits for regional areas. The conclusion drawn is that in certain circumstances, online medical certificates will be considered appropriate.
So what do you do when you receive an online medical certificate from an employee? Does the medical certificate need to be accepted? Or can you go behind the veil of the certificate and question its legitimacy?
You may recall the well-publicised “Beauty and the Geek” case from a few years ago. This was the case where an employee from the Bureau of Meteorology (BoM) successfully brought a general protections case against BoM after his employment was terminated following his appearance on the Seven Network reality television program “Beauty and the Geek” whilst on sick leave related to a mental illness.
There was conflicting medical evidence in this case. Around the time of applying for sick leave, the employee had provided a detailed report from his long-term GP which certified that the employee was unfit for work but that he was fit to participate in the show. Indeed, the GP certified that he thought the show may actually be “beneficial” for the employee’s mental wellbeing and may assist with his recovery.
The BoM chose however to ignore the GP’s report and elected to terminate the employee on the basis that the employee had provided unacceptable medical evidence for his absence. In so doing, the BoM relied on a medical assessment conducted by an Australian Government medical officer a month prior to the dismissal, which had found the employee to be medically fit for work.
The Federal Magistrates’ Court (now known as the Federal Circuit Court) ruled that the BoM had taken unlawful adverse action against the employee due to his taking of sick leave and ordered the employee be reinstated. In so doing, the Court was critical of the BoM’s decision to disregard the GP’s professional view around how the employee’s condition meant that he could simultaneously be unfit for work and fit to participate in a reality television program.
So how is this case relevant to the online medical certificate phenomenon? Well, the following key take-aways from the case are applicable irrespective of whether the medical evidence you have been presented with is from a traditional (face-to-face) provider or an online provider:
• It is difficult for an employer to ‘go behind’ a medical certificate to question its legitimacy. Courts and tribunals usually take a dim view of circumstances where employers disregard medical evidence about an employee, unless there are extenuating circumstances or a reasonable basis for doing so.
• Where you are faced with a circumstance of conflicting medical evidence, you shouldn’t just choose to rely upon the evidence that best assists you in reaching the outcome that you want to achieve. Instead, seek to question the medical practitioners around the inconsistencies and/or consider the merits of an independent medical examination.
So what can or should you do if an employee provides you with a medical certificate from an online provider?
1. In the first instance, examine the certificate in the same way as you would examine any other medical certificate. Is it clear when the employee is unfit for work and why? Does it comply with the AMA’s medical certificate requirements? Does it comply with any requirements in any applicable industrial instrument or under your company policy?
2. Seek to resolve any residual suspicions you may have by investigating the process that the particular online provider undertakes prior to issuing a medical certificate.
3. Ask the employee why they were unable to attend a consultation in person and suggest that they do so in future to ensure that they are receiving appropriate, tailored medical care, and treatment.
4. If you have any reason to question the legitimacy of the employee’s absence, such as knowledge of some social media postings which suggest that the employee’s inability to attend work isn’t stopping them from doing other strenuous activities, raise these postings with the medical practitioner who provided the certificate.
5. If the practice of the employee providing online medical certificates is becoming more common, consider means by which you can satisfy yourself of the employee’s fitness for work, e.g. directing them to attend an independent medical examination.