Is a RAT Covid-19 test alone enough for Personal Sick Leave?

Is a RAT Covid-19 test alone enough for Personal Sick Leave?

In the current ever-changing times of 2022, it may not be practicable for an employee to provide a Medical Certificate as evidence of absence on personal leave on the day.

An employee may still be required to provide a statutory declaration or provide evidence that would satisfy a reasonable person. Employees are required to notify of an absence on personal leave as soon as reasonably practical, which may be a time after the leave has started.

Option 1: Medical certificates issued by a medical practitioner.

Option 2: Statutory Declarations with a reminder of the significant legal penalties for making false declarations, which is why a signed statutory declaration is considered valid evidence for the purposes of the Fair Work Act.

Option 3: Certificates from Other Health Professions such as pharmacists, dentists, osteopaths, chiropractors, nurses, occupational therapists, optometrists, and other medical practitioners are not directly referenced by the Act but are commonly regarded as evidence that would satisfy a reasonable person for claiming personal sick or carers leave.

Is a RAT Covid-19 test evidence that would satisfy a reasonable person?

The provision of an at-home RAT alone with or without online registration may be helpful at the time of notification, but an employer may still require a supporting leave request, Medical Certificate or Statutory Declaration upon return to the workplace or within a brief period of taking the leave. An at-home RAT may be a reasonable indication; however, it lacks the independent endorsement, health support/management provided by a medical certificate or the significant legal formality of a statutory declaration.

If an employee does not provide satisfactory evidence as required by the Act within a reasonable period following the illness at the request of the employer, then entitlement to that leave may not exist.

When can an employer request a medical certificate?

Employers can ask an employee to give evidence even if absent only for one day. An employee who fails to give evidence to their employer when asked may not be entitled to be paid for their sick leave.

The Fair Work Act does not specify the type of evidence that needs to be given for sick leave, only that it would satisfy a reasonable person that the employee was genuinely entitled to take the leave. Generally, medical certificates and statutory declarations are examples of forms of evidence that most employers will accept. An at-home RAT, being a self-administered test, does not carry the same consideration as a PCR test, Medical Certificate or Statutory Declaration. A RAT administered under the documented supervision of a health professional, for example, or independently witnessed or by your employer directly would satisfy a reasonable person as evidence. 

What notice does an employee need to give?

An employee has to let their employer know as soon as possible, and this may even be after the leave has started if prior notice was not possible. When giving notice of taking sick leave, an employee should specify how long they anticipate they will need to be away from the workplace.

Which rapid antigen test kits can be used?

The TGA includes a list of all registered rapid antigen test kits.

We acknowledge ongoing community frustration in testing; however, testing requirements remain an important tool for a safe workplace.

For questions about the FWO, Compliance Notices, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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