Medical Certificates - Employer Rights - Part One

Members express to me on a regular basis how frustrating medical certificates are around the lack of information about the illness or injury an employee suffers. A standard medical certificate often does little more than confirm an employee is "unfit for work" for a specified period, without identifying the condition, restrictions, prognosis, or any adjustments that may assist a safe return. However, the employee's privacy rights mean an employer is generally entitled to know about work capacity, not necessarily the diagnosis.

Below are lawful steps employers can take where the information provided is inadequate to manage attendance, health and safety risks, or ongoing employment obligations.

Employer Rights

An employer can explain why the information provided is insufficient and seek additional information focused on:

• Whether the employee is fit for work
• Whether they are fit for some duties
• Workplace restrictions
• Expected duration of restrictions
• Whether modified duties would assist
• Whether a return-to-work plan is appropriate

The key is to focus on capability and restrictions rather than demanding disclosure of a diagnosis.

Example

Rather than asking:

"What illness does the employee have?"

Ask:

"What duties can the employee safely perform, what restrictions apply, and how long are those restrictions likely to remain?"

2 - Ask for Further Information about Capacity for Work

Under the Health and Safety at Work Act 2015, employers must ensure, so far as is reasonably practicable, the health and safety of workers.

Where an employee is returning to work following illness or injury, an employer may legitimately state:

"We need sufficient information to assess whether there are any risks to the employee, co-workers, customers or the workplace and whether any accommodations are required."

This does not automatically entitle the employer to a diagnosis, but it can justify seeking functional capacity information.

3 - Seek Employee Consent to Contact the Treating Practitioner

Where genuine uncertainty exists, employers can ask the employee for written authority allowing:

• Contact with the GP or specialist
• Written clarification from the practitioner

This should be limited to specified questions relating to fitness for work and workplace restrictions.

4 - Request a More Detailed Medical Report

For ongoing absences, recurrent absences or situations involving possible medical incapacity, employers can reasonably request a more comprehensive medical report addressing issues such as:

• Current work capacity
• Whether duties can be performed safely
• Restrictions and accommodations
• Likely timeframe for recovery
• Whether the condition is temporary or permanent

In longer-term situations, employers will often offer to pay the cost of the report.

5 - Obtain an Independent Medical Examination (IME)

Where there are genuine concerns about:

• The adequacy of medical information
• Conflicting medical evidence
• Fitness for duty
• Safety-sensitive work

an employer may seek an Independent Medical Examination (IME).

This is most defensible where:

• There is a genuine business need
• The information sought is relevant and proportionate
• The employee is consulted first
• The request is made in good faith
• Care workers

employers may engage occupational health practitioners to assess:

• Fitness for specific tasks
• Functional limitations
• Workplace adjustments required
  

Occupational health reports are often more useful than standard GP certificates because they focus on work capability rather than diagnosis.

Part 2 will be published in the November HR Insights newsletter

As this is a challenging area, members are strongly advised to seek specialist advice and contact me at michaelp@businesscanterbury.org.nz.