Managing Ill & Injured Employees: What Are The Risks?
3 June 2020
IN BRIEF: Managing ill and injured employees is an involved process requiring a high level of communication and medical consultation. Preceding our webinar on the topic, CCER has put together this article on how to manage these workers, including this comprehensive members-only guide available via the link or on our members site.
Do any of these scenarios sound familiar?
- An employee with a known chronic medical condition has been off work for over a year with no indication of when they might return.
- An employee has taken a fair bit of sick leave over the past 6 months and the medical certificates you receive simply state they are unfit due to a ‘medical condition’.
- An employee is displaying erratic behaviour and they seem withdrawn and upset which is affecting the rest of the team.
- An employee had surgery 6 weeks ago and they’ve provided a medical clearance to return to work but with reduced capacity over the next few months.
Managing workers who are suffering from a non-work related injury or illness can be one of the more complex areas of employee management. When deciding what steps to take, consideration needs to be given to requirements under discrimination law, unfair dismissal and adverse action risks and work, health and safety obligations.
It can feel like it’s just too hard and time consuming to manage, but employers have a duty of care to employees and the effects of not managing ill and injured workers consistently and reasonably can have a detrimental effect on the health and safety of workers, affect productivity and team relationships and could end up costing the employer a lot of money.
As most employees will experience major illness or injury at some point in their working life, the challenge for managers is to balance care and concern for their staff with operational needs.
Getting the Balance Right
Communication and obtaining medical information
Communicate with your employees. If you can see that an employee is struggling to perform the inherent requirements of their position or has been on sick leave for a while and it’s unclear when they are likely to return to work, have a discussion with them about your concerns, giving them the opportunity to provide you with information and suggestions about ways to address those concerns.
It’s also critical that employers obtain and act on medical evidence, rather than relying on assumptions about what an employee can or can’t do in their role.
An employer has the right to request an assessment of the employee’s medical condition where it is impacting their ability to safely and effectively perform the inherent requirements of their position. This can be obtained from the employee’s doctor or an independent medical practitioner of the employer’s choosing. A comprehensive description of the role and its requirements as well as asking the medical practitioner the right questions is crucial to obtaining useful medical information.
Consider reasonable adjustments
Once you have the medical information, the next step is to examine whether reasonable adjustments can be made to enable a worker to perform their job, despite their medical condition. Those adjustments might include changes to hours and days of work, work methods or the provision of equipment.
Employers have obligations to make reasonable adjustments to enable employees to return to work in their pre-injury role, however if adjustments to the workplace adversely impact service delivery, are too costly, or cause some other detriment, the employer does not have to make these changes. This is known as ‘unjustifiable hardship’.
Dismissing an Employee on Medical Grounds
If medical evidence shows that an employee is unable to perform the inherent requirements of their role for the foreseeable future due to their medical condition – and reasonable adjustments cannot be made – an employer is not required to keep a position open indefinitely and will need to consider whether termination of employment is appropriate.
Incapacity to perform the inherent requirements of their position may be a valid reason for the termination of an employee.
It is important that the termination process is procedurally fair, including providing the employee with an opportunity to respond to a potential termination.
When it Goes Wrong
Failing to make reasonable adjustments to help an ill or injured employee return to work, or dismissing an employee because of their disability, could be unlawful and expose an employer to costly claims.
Under the Fair Work Act, there are a number of possible remedies and penalties where adverse action has been taken against an employee on discriminatory grounds or because of an employee’s temporary absence from work due to an illness or injury. Importantly an employer has the reverse onus of proof to demonstrate they did not act unlawfully.
The maximum penalty for contravention of the unlawful discrimination protections is $63,000 per contravention for a corporation, and $12,600 per contravention for an individual.
Where the Federal Court or Federal Circuit Court determines that adverse action has been taken, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation.
How CCER Can Help
CCER’s training and events series returns on 24 June with the Managing Ill & Injured Webinar. In this 1-hour webinar, CCER’s Julie Tran and Simon Spence will delve into the legislative protections for ill and injured workers, consider case law, provide practical tips and answer your questions. They’ll cover some of the pitfalls in managing long term absences, how to minimise risks when terminating employment and more.
To register for this webinar, click here.
We have also just released new Managing Ill and Injured Employees Guidelines which members can access in the Guidelines category of the resource library. While these guidelines provide practical information, often these cases are complex, and we encourage you to seek advice from CCER about how best to manage your ill or injured employees.
If you have any questions or concerns, please feel free to get in touch and speak with any of our Employment Relations Specialists at (02) 9390 5255 or email us at firstname.lastname@example.org.
Disclaimer: CCER does not give legal advice and this information should not be taken as such.
Kath Grant is an Employment Relations Specialist at CCER