One of the most difficult scenarios an employer can be faced with is how to manage an employee with a non-work related medical condition.
With a minefield of legal pitfalls to navigate, Murdoch’s Senior Associate, Suzanne Wishart, provides some guidance.
Generally, if an employee is absent from work on sick leave for more than two days they are required to provide their employer with a medical certificate (this can vary depending on the applicable industrial instrument). However, medical practitioners usually provide little information on the medical certificate which can make it very difficult for an employer to manage the absence and any return to work.
Employers have an obligation under work health and safety legislation to take all reasonably practicable steps to provide a safe workplace. Further, under anti-discrimination legislation an employee can be required to make reasonable adjustments to accommodate an employee’s medical condition.
However, in order to assess the risk, identify ways to manage the risk and consider reasonable adjustments to accommodate the condition an employer needs to have information about the condition and its impact on the employee’s work capacity.
If an employee is absent on sick leave for an extended period of time an employer is generally entitled to seek further information about the nature of the employee’s illness/ injury and its expected duration to the extent that it is relevant to the employee’s work capacity and management of their return to work.
An employer should seek the written consent of the employee to liaise with and obtain information about their condition from their treating medical practitioners, keep this information confidential and discuss the information obtained with the employee.
Where the medical condition is prolonged and/or complex it may be necessary for an employer to arrange for an independent medical examination to be conducted and a report obtained with respect to the employee’s work capacity.
Under s 352 of the Fair Work Act 2009 an employee who is temporarily absent from work due to illness or injury may be protected from being dismissed if they are absent for less than 3 months or a total of less than 3 months over a 12 month period, they are on paid personal/carers leave and have provided evidence of their illness/injury.
If the absence extends beyond three months an employer is not entitled to automatically dismiss an employee. Steps should be taken to obtain information on whether the medical condition is temporary or permanent, when the employee is likely to be able to return to work, whether the employee will be able to perform the inherent requirements of their position, the safety implications of the condition and whether any adjustments need to be made for the condition.
An employer then needs to consider all of the information obtained, discuss this with the employee and determine:
- if a return to work can safely occur;
- the nature and extent of any adjustments required and if they are reasonable;
- if the inherent duties of the position can be performed; and
- the likely timeframes.
What is a reasonable adjustment has a particular legal meaning. An adjustment is considered reasonable unless it would impose unjustifiable hardship. What is unjustifiable hardship depends on all of the relevant circumstances including the nature of the benefit accrued and detriment suffered by the relevant persons, the effect of the condition on the person concerned, the financial circumstances and expected expenditure required and the availability of financial or other assistance.
A decision can then be made to return the employee to their usual position or a modified role, allow the employee further time to recover or terminate the employment on the basis the employee is unable to perform the inherent requirements of their role (even with reasonable adjustment) due to the condition and it is a permanent or long term condition.
An employer is not generally required to offer an incapacitated employee an alternative role on a permanent basis.
If a decision is made to terminate the employment care must be exercised to comply with the relevant requirements to dismiss an employee including giving adequate notice, advising the employee of the proposed decision, giving them access to the medical evidence gathered, ensuring the employee is offered a support person, giving the employee the opportunity to respond, carefully considering any response and ensuring the decision is not in breach of anti-discrimination, workers compensation or other applicable law.
It is important to understand that this can be a stressful time for an employee. Employers should ensure they provide reasonable support to employees and their dealings are reasonable, within the law, in accordance with any relevant policies/procedures and are conducted in a reasonable way.
If the condition is work related an employer’s obligations vary greatly and there are specific rules regarding termination due to the condition, the use of medical information and responsibilities to assist with rehabilitation and return to work.