MANAGING ILL OR INJURED EMPLOYEES
You hear that one of your employees is again absent from work and this employee has developed a pattern of not attending work. You have requested medical certificates as evidence for the absence. These medical certificates provided by the employee contain information like “medical condition” and you feel there is limited action you can take. To compound your concerns, the employee’s absence impacts on their team and even on your wider workplace and may be even influence the effectiveness of your business.
In this article, we look at preventive strategies and then some ways to manage these situations to seek to have employees working safely and effectively.
There is increasing pressure on businesses and teams within them to perform to high levels of effectiveness. This requires commitment by everyone and when people are unable to attend work owing to a personal illness or injury, we need to have strategies in place to support their resumption of business and team effectiveness as quickly as possible.
Personal leave comprises sick and carer’s leave and is an entitlement for every full time and part time employee as a part of the National Employment Standards (NES). We will only focus on the sick leave component and not carer’s leave in this newsletter. In addition, we are not addressing work related absences such as workers compensation; that is, absences from work due to a work related injury.
What is the entitlement for employees in relation to personal (sick) leave?
The NES provides for full time employee to accrue 10 days personal leave each year of employment. Personal leave accrues over the year and generally at each pay cycle. This means that the 10 days of entitlement is not available at the commencement of employment but over the course of the first year. Part time employees also receive personal leave and this is on a pro rata basis dependent on their normal hours each week. Casual employees do not have access to paid personal leave but may seek to be absent from work on account of personal illness or injury in the same way that full time and part time employees do. The difference is that their absence is unpaid.
The personal leave entitlement accumulates from year to year and some employees may go through their employment maintaining a high personal leave balance whilst others may, often by circumstances out of their control, exhaust their entitlement each year.
If your employees are covered by an enterprise agreement, they may vary from above but cannot be less than the standards prescribed in the NES.
Does an employee need to provide evidence when they are absent?
To receive payment for a period of personal (sick) leave, there are specific rules that should be applied, regardless of the record of absence. These rules are contained with the NES and are summarised as follows:
- The employee needs to give notice to their employer that they are unable to attend work because they are either unwell or injured preventing them from attending work. This notice must be given as soon as is practicable which in some cases may occur after the employee’s normal starting time. In giving this notice, they are also required to advise the expected period of absence.
- If you, the employer, are wanting the employee to provide you with evidence to support their absence with evidence, the employee needs to be informed to do so. The NES prescribes the evidence that would satisfy a reasonable person. In most cases a medical certificate or a sworn statutory declaration is appropriate.
An important aspect of evidence is the awareness employees have of this requirement. Good ways are to include this in the employee’s letter of offer or through a well-publicised policy or better still, using both. This then alerts the employee to the need to provide evidence for absences and forms part of a preventive approach to personal (sick) leave management – employees know about this requirement from the commencement of their employment.
Can absences from work be linked to a disciplinary program?
The key aspect of linking absences from work with discipline relates to the compliance by the employee to the requirements of the employer. Assuming you have made it clear that the employee, when absent, needs to let you know (give notice) and that you have required them to provide a medical certificate (provide evidence), you are able to discipline them if they do not follow these directions. If the requirements are not well known by the employee, they should be formally advised to the employee and then relied on for future absences.
My employee has a long-term illness (or injury) that is not work related. What can I do?
Handling longer term absences require the juggling of doing the best for the employee and the employer and all the while, maintaining empathy, respect and compassion for the ill or injured employee. Let’s assume the ill or injured employee has some form of incapacity. Ideally, the employer should aim to return the employee to their pre-injury role supported with reasonable adjustments and accommodations in the role and the workplace environment.
A difficult task in this process is assessing the incapacity. For this reason, many employers choose to direct the ill or injured employee to attend an independent medical examination. A medical examination allows for a more neutral review of the employee’s condition and provides information about the capacity and capability of the ill or injured employee to perform the inherent requirements of their role safely. It is important when seeking the independent medical examination that the professional conducting has a clear outline of the role the employee is expected to perform and is usually best handled by providing the examiner with the employee’s position description and similar relevant details. Having this independent focus draws the situation away from discrimination claims and an employee is tested on their ability to perform the most fundamental aspects of their job (that is, the inherent requirements) even after reasonable adjustments or accommodations might have been made.
Often, ill or injured employees refuse to undergo the medical examination citing that their treating doctor is providing sufficient information for their employer. Recent legal challenges have re-emphasised that employers can direct employees to attend an independent medical examination in order to test their fitness for work and an employee’s inability to perform the inherent requirements of their position both now and into the foreseeable future. This assessment of the ability to perform the inherent position or job requirements may in turn support a direction where that lack of performance can constitute a valid reason to terminate the employee. Medical examinations must only be used to support strategic decision making. Medical examinations used to manipulate outcomes are unwise and can be quite harmful to the employer and its reputation. Any decision related to an employee’s employment should never be taken lightly or spontaneously; this often opens the gates for claims of discrimination, unfair dismissal and similar claims that then consume huge amounts of time and resources.
What are some of the traps to be aware of?
The following outlines some of the traps of not effectively managing an employee’s personal illness or injury, regardless of whether it is a short-term issue or has been going on for some time:
- Discipline – being inconsistent in the management of the notice and evidence requirement whether with the same employee or handling separate employee cases differently or inconsistently.
- Delay – having an employee on an extended period of unpaid leave with no communication with them including discussion about prospects of returning to work.
- Alternatives – often employers do not adequately explore reasonable adjustments that could be made to a role to accommodate the illness or injury. Considering redeployment is often overlooked here as well.
- Clarity – employers may not be clear with employees about job requirements and whether alternative duties are permanent or temporary.
- Medical evidence – employers can fail to proactively manage the employee’s capacity for work and not rely on sound medical evidence to make decisions about the employee’s tenure. This seeking of medical advice includes obtaining the answers to the employer’s questions when a treating practitioner does not provide sufficient detail.
Needing advice and help?
Managing ill and/or injured employees does require considerable effort and commitment by the organisation, its owners and its managers. Done well and supported with good policies, the outcome is most often commitment from the impacted employees. Done less than well almost always results in poor outcomes and lengthy legal proceedings.
If you would like assistance with managing ill and/or injured employees, or if you are interested in developing or introducing policies and terms and conditions of employment to support a culture of commitment and support, please contact please contact AB Phillips Pty Ltd, Monday to Friday between 9:00 am and 5:00 pm AEST by phone on 1300 208 828 or email firstname.lastname@example.org
Please note that the above information is provided as comment and should not be relied on as a substitute for detailed professional advice from AB Phillips or professional legal or financial advice on any particular matter. Where you would like additional information and support about the content in this document please contact AB Phillips.