No one wants to be unwell or injured, least of all while they’re working. Often illness and injury are unavoidable but this means employers and employees can find themselves in a difficult position when trying to navigate how to manage working arrangements. So what do you do when the worst happens? We’ve put together a short guide to help you manage the various situations you may face with an ill or injured employee.
If an employee wishes to claim worker’s comp for a work related injury or illness, they must have a medical practitioner assess them. From there, they will provide a “certificate of capacity” indicating the employee’s ability to work. They may be entitled to weekly payments if it is established they cannot return to work.
If the claim is accepted and the employee begins receiving worker’s compensation, it is the employer’s responsibility to keep the position open to them for the first 12 months of payments. The “obligation of suitable employment” means they should be able to reintegrate the employee either in their original job or equivalent job. This could be on a restricted or unrestricted basis, meaning they may be able to perform part of their pre-illness or injury tasks before returning to full responsibility.
In Victoria, workers compensation laws require payments to begin at the earliest date upon receipt of claim, certificate, or notification of documents. While the general rule is 12 months of obligation, it does not count during times when the employee can work, or if the claim is rejected.
When an obligation may be lifted
An employer could find the obligation of suitable employment lifted if it is proved that fulfilling the obligation would be unreasonable, causing “unjustifiable hardship.” This could be due to:
- The amount of time the worker has been employed
- Financial burden on the employer
- Disadvantage to the employer and/or employees
- The ability of the employee to return to work long term or find worthwhile employment somewhere else
- Attempts to rehabilitate the employee
- A requirement for retraining and a judgement of whether the employee could fulfil this
- A number of factors
According to section 130 of the Fair Work act, an employee may be able to accrue annual leave if the compensation law of the state or territory allows for it. In Queensland employees are able to accumulate all kinds of leave while under worker’s compensation payments. Tasmania allows employees to take their leave while they are receiving worker’s compensation payments. Beyond this, rules are somewhat murky and vary place to place.
An employee is consistently late or under-performing and you suspect this may be due to an illness or injury but have no further information to prove it. What should you do?
To begin with, starting work on time and working to their full capacity is an employee’s job. If they are not fulfilling the requirements of the position, regardless of the reason, you should meet with them to discuss this. You can ask the employee whether there may be external factors or personal issues making it difficult for them to fulfill their role. If the employee acknowledges that health is affecting their ability to do their work, there are steps you can take.
Firstly, you should try to get an indication of why their health is negatively affecting their workload to see if there is a way to accommodate it.
Secondly, you could also ask for a medical report from their doctor, or for permission to talk to their doctor. If you do talk to the employee’s doctor, ensure a copy of the conversation is transferred to the employee. If the employee does not wish to share medical details with you, you can tell the employee they have a set period to provide information. While this may seem like an invasion of privacy, knowing an employee’s health issues can help you accommodate them in their job, possibly suggesting a change in work hours or breaks.
If they still do not wish to share, then you can inform them that you will have to act on their poor work performance as if you have no knowledge of their poor health.
While you cannot force an employee to agree to assessment by a doctor of your choice, you can act on the information you hold. Thus, if an employee fails to provide you with medical evidence, their performance will be judged on itself alone, without acknowledgement of complicating factors. However, should an employee wish to apply for worker’s compensation, then they will be required to undergo medical assessments organised by the insurer.
Furthermore, an employee under workers compensation does not have to be cleared for unrestricted work in order to return. In fact, if an employer attempts to enforce this they may be in contravention with anti-discrimination and worker’s compensation laws.
An employee has submitted a claim that they are under a lot of stress. In this case, you may wonder if you can organise surveillance of the employee in order to decide if this is accurate. This depends on the idea of a “reasonable expectation of privacy.” Is the employee in a public space? Would they expect to have their movements watched or monitored? While not technically illegal, surveillance evidence may not hold up in court due to it being seen as intrusive.
Communicating with the employee during stress leave
If an employee’s on stress leave, is it a bad idea to contact them? Short answer: yes. If you need to have contact with the employee, it would be a good idea to have channels through which to reach them, for example through a relative or a message service they can check only if they feel up to it. Anything else may risk making their stress worse.
The employee’s position while on stress leave
In the beginning, it would be unadvisable to make changes to an employees position, or make it redundant until a comprehensive assessment of the situation can be made. If possible, any decisions about a position should be placed on hold until there has been an attempt for the employee to return to work. Any other changes may make the employee’s stress worse.
Generally an employer is required to hold a position for an employee receiving payments unless in the case of unjustifiable hardship, However if returning to work would be impossible for the employee, the position could potentially be filled or discarded. In this case, the decision must be business-based and not employee-based.
Medical assessments for new hires
If this all seems daunting, you may be tempted to consider asking employees to have medical assessments prior to offering them a role to avoid complications further down the track. Employers are allowed to require a medical examination in order for a prospective employee to be hired however, they must show that this is necessary in order to understand whether an applicant can fulfill the demands of the role.
Overall, employee illness and injury is not easy for anyone, most of all the employee. Having open an honest conversations with the employee about their problem and the best course of action for them, as well as following workplace law properly, will make a bad situation a little bit easier.