There is always a risk for employers of valued employees being unable to work for a lengthy period of time. How do you as an employer handle such situations with compassion while considering your business needs and your employees’ rights and obligations?
Long term absences of employees need to be handled differently depending on whether the employee is absent from work due to a work related illness or injury or due to a non-work related illness or injury.
Absences due to on-work related illness or injury
Legislation classifies a long-term absence due to non-work related illness or injury as an absence from work of over three months. Short term absences of under three months due to illness or injury are dealt with differently to long term absences.
The ideal situation for both an employer and employee when an employee has had a long-term absence due to illness or injury is that they return to full health and can go back to their pre-injury position.
However, often the situation isn’t ideal and an employer can be forced to assess one of the following circumstances:
- an ill or injured employee who can no longer perform the inherent requirements of their position
- an employee returning to full health and performance ability but during the period of absence the role they performed is no longer required by the organisation
- costs to the business for resourcing the absent employees position
Absences due to work related illness or injury
These circumstances can be further compounded in complexity if the injury or illness is work related. In Queensland, The Workers Compensation and Rehabilitation 2003, defines a work-related injury or illness as an illness or injury that arose out of or in the course of employment and if the employment is a significant contributing factor to the injury.
In such instances employers can not dismiss a worker within 12 months of the worker sustaining an injury or developing an illness. This includes psychological illnesses where the employment is the major significant contributing factor to the injury.
Where an employer dismisses an employee due to incapacity arising out of a work-related injury, there may be an obligation to re-employ the employee if the employee can produce a satisfactory medical certificate within 12 months of the injury to demonstrate they have regained full capacity.
Employers need to take a considered approach at or after the 12-month mark to determine if the employee could return to full capacity in the foreseeable future as a failure to reemploy can give rise to an application for reinstatement.
Work related illness or injury is just one scenario that can lead to a long-term employee absence. When dealing with a long-term employee absence, employers need to consider a collision of legislative obligations including:
- Work, Health and Safety Act (by State)
- Fair Work Act 2009 (Cth) unfair dismissal as well as general protection provisions
- Anti-Discrimination Act (by State)
- Disability Discrimination Act 1992 (Cth)
- Worker’s Compensation and Rehabilitation Act (by State)
It’s important for employers to be aware there is not a one size fits all approach to resolving what can be a complex issue, situations of long-term absences due to illness or injury and the employees return to the work place need to be assessed individually.
If you would like some guidance or advice related to long term employee absences, please contact Harrison Human Resources.