Its time to talk about: Being required to see a doctor
Medical certificate clauses in employment agreements
If you go to your collective or individual employment agreement, you will find a clause in there about sick leave and what is expected of you if you are sick. For example, how you should notify your employer and at what point you may need to provide a medical certificate. This is all very standard, and chances are you probably haven’t looked twice at this clause. If you haven’t, I encourage you to go unbury that agreement now and take a look.
There is a reason for this recommendation. I have recently seen a growing trend of employers adding clauses to individual employment agreements (ones not negotiated by a union) which allow your employer to send you to see a medical practitioner of their choosing to obtain a medical certificate for any physical or psychological sickness or injury that may impact on your ability to work.
The Holidays Act 2003 on the other hand says that the employer right to seek proof of sickness or injury does not give the employer the right to require the employee to obtain the proof from a person specified by the employer. Lawyers may argue that this wording in the Act technically does not forbid employers from adding this requirement. This may be correct. However, in my view for the Act to specifically mention that the employee keeps their right to choose their own medical practitioner carries weight and creates the benchmark of basic rights and protections.
In my experience most employers who include a clause of this nature do not actually think too much about it and simply see it as protective in a vague way. This idea of it being useful or protective is what I want to unpick. Here are some of my reasons behind thinking these kinds of clauses can be problematic:
Relationships matter
I don’t know about you but when I go to see my doctor the relationship, I have with them matters a lot. I have to build trust with a doctor or other health professional in order to discuss what may be highly personal or complex issues about my health and wellbeing. My doctor knows me now and much of my history, so can see through some of the surface assumptions and presentation to the real issues much more easily. We have established a way of interacting that works. It’s taken time. I live with epilepsy and learning to talk about this with my health professional and build a shared understanding about my needs, fears and concerns has been integral to getting good outcomes from treatment.
If I was to see a brand new person, that I had no connection with and I was required to engage with them on a personal and likely difficult matter this would be at best highly uncomfortable and at worst traumatic. I am more likely to say less or be misunderstood. Efficient diagnosis and prognosis is as much about understanding the person as understanding the illness, something that is supported by research.
2. Culture and/or gender matters
The culture and/or gender of your doctor can be really significant for many. I, for example, feel 10000 times more relaxed and comfortable with a woman as my doctor. Whether or not you agree that this should be a factor, the reality is that it is. It may be because in my experience women listen more, or that they have a richer, more nuanced understanding of the female body or just that they feel safer. Regardless, it is a real and tangible difference for me. If I was sent to see a strange man about my personal health, I would find that difficult. We need to be conscious about what we as employers are really communicating with a clause allowing the appointment of a medical practitioner. We are sending the message (whether we intend to or not) that it is ok for a Māori woman to be sent to a Pākehā man for diagnosis. Regardless of her wishes. Is that a message we want to be sending? Who does this benefit?
3. Trust in health professionals matters
Underlying the appointment of a medial practitioner clause is an idea I have heard muttered around Human Resource (HR) circles. “It’s so easy for someone to get a medical certificate from their own doctor -they are not worth the paper they are written on”. To me this speaks to a concerning lack of trust in the professionalism and competence of health professionals. More than that, it speaks to the idea that somehow relationships, a connection or history between medical professionals and their patients leads to collusion and manipulation, rather than a more honest and realistic insight into the abilities (or lack thereof) of the patient. This kind of messaging leaves us with the (very colonial and patriarchal) impression that distance and aloofness produces more accurate outcomes than knowledge and connection. On the whole I trust health professionals to make the right judgments with and for their patients.
4. Trust in workers matters
Enshrining the ability to appoint a medical practitioner for employees sets the stage for a low trust workplace culture. The subtext of this clause can send the message that if workers are left to engage with their own health professionals they may choose poorly or manipulate their doctor based off the relationship to “get off work”. While I accept there will always be some people who can be problematic in terms of leave use/reliability -there are always real underlying causes to this. They will not be addressed by simply picking a different doctor for the employee. Underlying causes of leave use or ongoing patterns of sickness can be identified and addressed via great leadership, building strong lines of communication and a culture of trust and connection. This might seem ‘airy fairy’, but I have done it and seen it done. Good workplaces can and do support people through mental and physical illness while still having boundaries to protect other staff, clients and the organisation.
5. Legislative protections matter
I think a useful rule of thumb if you are constructing an employment agreement is don’t attempt to contract out of legislative protections for employees. This is true regardless of whether or not you (or your lawyer) think your clauses can be enforced in a case of a dispute. Those protections are there for a reason. I think it again worth stating as I did in my earlier blog on employment agreements that minimum standards of employment are a framework that knit together to form a safety net for our working environments. If one stitch is dropped the fabric of the whole framework is weakened.
If you want to adjust clauses in your employment agreements and/or want help with the culture in your teams or workplace I can help! Contact me at amy.ross@workethics.nz for a free half hour chat to see how I can support you and your organisation.