Legal newsflash: Since 1 July, the categories of healthcare professionals who can sign fit notes has broadened considerably. Previously, only doctors could sign people off work. Now, nurses, occupational therapists, pharmacists and physiotherapists can also sign fit notes. The idea is to try to lighten doctors’ workloads a little, whilst making it easier for people to get a fit note without necessarily having to book an appointment with their GP.
Strictly speaking, since April 2022 there has been no need for an actual ink signature on a fit note – the relevant healthcare professional need only include their name and profession for it to be valid. This means fit notes can be sent by email.
With this in mind, and considering the fact that there were various changes to the regime caused by the mass staff absences due to COVID-19, it’s a good time for a refresher on fit notes and medical examinations more generally.
When to ask for fit notes
After seven days of sickness absence (including non-working days), you can require your staff member to give you a note from a healthcare professional, known as a fit note. If a staff member is off sick for less than seven days, they can self-certify. Note that during much of the pandemic (for staff absences starting on or after 10 December 2021, up to and including 26 January 2022) you couldn’t require the staff member to give you a fit note unless they were off work for 28 days or more.
Who can sign fit notes and what they should say
As to who can sign fit notes, they must come from a healthcare professional (a doctor, nurse, occupational therapist, pharmacist or physiotherapist). In it, they will advise whether the staff member is unfit for work in general, or possibly fit for just some aspects of work. Where they state the latter, they will often specify how you can facilitate the staff member’s return to work more quickly (eg by decreasing their working hours temporarily, or reducing strenuous duties). You should conduct a return-to-work interview when the staff member returns to work, to check that they are well enough to be back, discuss any recommendations set out in the fit note and come to an arrangement about how to facilitate them until they have recovered.
Note that it’s also open to you to request that the staff member submits to a more thorough medical examination in certain circumstances; this is likely to be most relevant to staff who are on long-term sick leave. We discuss this further below.
As always, where you are storing any records relating to a staff member’s health, you must bear in mind that it is sensitive personal data and has special requirements relating to its use and storage. For further information about this, see Records and staff data.
What to do if a staff member fails to provide a fit note
If a staff member fails or refuses to obtain a fit note after taking sickness absence for more than a week, you can consider treating this as a disciplinary matter, provided that the staff member has no good reason for this failure. For more information, see Taking disciplinary action and for a template disciplinary procedure, see Staff handbook and policies.
How staff should certify a sickness absence due to COVID-19
Staff members can self-certify their sickness absence due to coronavirus for the first seven days (they do not need to provide a fit note). If they are absent for longer than seven days, you can request proof from them in the form of a fit note.
The Government has introduced online isolation notes as an alternative to fit notes for staff who are off work with COVID-19. These can be obtained by your staff from the NHS website or NHS 111 online. Note that from 24 February 2022, the legal requirement to self-isolate has ended in England, and from 25 March 2022 self-isolating staff are no longer eligible for statutory sick pay.
If your staff member was formerly shielding in accordance with Government guidance, they would have been provided with a written shielding notification. This notification will likely specify the period of time during which your staff member was required to follow shielding measures, and can be overridden by a further notification advising your staff member that they are no longer required to shield or that they should continue to shield for a further period. Note that formal Government shielding guidance for clinically extremely vulnerable individuals has ended.
When you can ask a member of staff to have a medical examination
Whilst you can require your staff to obtain a fit note after seven days of absence, you may wish them to undergo a more thorough medical examination in certain circumstances, in order to better understand their prognosis and your options in relation to their employment. It may also be a requirement of any insurance policy you have in place to cover your sick pay obligations. It’s likely to be particularly relevant where a staff member is on long-term sick leave.
Whether or not you can legitimately require a medical examination and report depends on various factors and you should consider the following:
- Under data protection law, you’re only allowed to collect personal data that is necessary and justified for the situation, so you should consider carefully why you need the information, what you are going to do with it and therefore whether you’re justified in collecting it.
- You may make it a condition of your staff member’s contract of employment that they submit to a medical examination in certain circumstances. However, even if this is the case, you’ll still need to write to your staff member and obtain their consent to the examination, explaining what it’s for and what you intend to do with the information requested, with details of any specific tests you wish to be carried out.
- Ultimately, you cannot force a staff member to attend a medical examination and should be sensitive about asking someone to take one.
If they refuse, ACAS recommends that you explain that you’ll have to make decisions about their employment based only on the information you have available. It’s a good idea to point out to your staff member that your ability to make informed decisions, and protect their health and safety, will depend on you having all the relevant information, including medical reports.
Helen Turnbull is Head of Strategic Development for the Marketplace at FromCounsel, the specialist corporate legal resource trusted by top global law firms and FTSE 100 companies. Before joining FromCounsel in 2021, Helen was Head of Content at Sparqa Legal. Having previously spent 12 years practising as a commercial and property law barrister, Helen regularly contributes her expertise to Sparqa’s blog.