Sick leave is a well-established statutory right, subject to a valid Medical Certificate (MC). However, an employee may sometimes produce a backdated medical certificate (i.e.: a medical certificate which covers a retrospective period). Are such backdated certificates valid and properly issued?
Employment Act 1955 (EA)
Section 60F of the EA sets out an employee’s entitlement to paid sick leave. An employee must be examined by a registered medical practitioner, but the Act is silent about backdated certificates.
Guideline from Malaysian Medical Council
The Malaysian Medical Council (MMC) is the statutory body that registers medical practitioners and regulates medical practice in Malaysia. In its guideline “FAQs on Medical Sick Certificate” dated 19 July 2022, the MMC clarifies that an MC can be backdated in a few special circumstances:
- Administrative Oversight: The patient did not initially request an MC, or the practitioner forgot to provide it at the initial consultation.
- Requests from Employer or Insurer: The patient’s employer or insurer requests the certificate a reasonable period after the consultation.
- Clinical Determination: The practitioner can reasonably determine the onset of the illness from the patient’s notes, and is satisfied the patient was genuinely unable to work during that period.
Crucially, the MMC distinguishes the date of issuance from the effective date: the issuance date must be when the practitioner actually issued the MC, not the date of initial consultation.
For example, an employee examined on 7 January is certified unfit to work from 7 to 8 January. The practitioner forgot to provide it then, and issued the MC on 10 January instead. The MC must be dated 10 January (the date of issuance) not 7 January (the date of consultation). In other words, the “backdating” refers only the MC’s retrospective effective date, not its date of issuance.
To pre-empt later queries from employers, the MMC advises practitioners to note the reason for backdating on the MC itself, such as: “Back-dated to the date of initial consultation as recorded in the notes.”
Case Law
The MMC guidelines govern professional ethics, but Malaysian courts have also assessed the validity of backdated MCs in the context of employment and dismissal. The clinical rationale in the MMC’s third special circumstance aligns closely with existing judicial precedent.
In the Industrial Court case of JC Freight & Enterprise v Ngoh Looi [2010] 1 ILR 546, a central issue was whether the backdated MCs presented by the claimant were valid.
The claimant was diagnosed with acute glaucoma on 19 June 2000 and underwent surgery on her left eye on 21 June 2000. Her medical leave was issued in three stages:
- The First MC: Issued on 22 June 2000, covering 19 to 30 June 2000.
- The Second MC: Issued on 5 July 2000 (after a review where she complained of pain and vision issues), covering 1 to 15 July 2000.
- The Third MC: Issued on 18 July 2000, covering 15 to 31 July 2000.
The doctor explained that the second and third MCs were backdated because the claimant had been an inpatient who underwent surgery and was later discharged. The doctor was certain the employee was unfit to work even on the days she was not examined (1 to 4 July). As the surgeon who operated on her eye, he knew it had not fully recovered: he had carried out a vision test confirming her blurred vision, and the surgery had altered the glass power she wore.
The Industrial Court agreed, ruling that a treating doctor is fully entitled to have a retrospective effective date for the medical certificates if, in his expert opinion, the claimant was unfit to work on those dates. It emphasised that the treating doctor is best qualified to issue the MCs, and that his reasoned evidence should be accepted.
Key Takeaways:
Where a backdated MC supports a sick leave claim, employers should look beyond the issuance date and assess whether a genuine medical timeline, prior consultation history, or clinical necessity justifies it.
An employer may challenge a MC’s validity and take disciplinary action for sick leave abuse if the MC is forged, fraudulently obtained, or otherwise procured dishonestly without a genuine clinical basis (eg: a backdated MC covering days the employee was not actually sick). Crucially, the employer must hold a due inquiry before taking any disciplinary action.
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This article was written by Keanu Tan (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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