Managing ill and injured workers can be one of the most complex and challenging employment-related matters for employers to manage. For instance, what can an employer do when one of their workers is absent for months on end or when they have genuine concerns about an employee’s fitness to perform their duties?
Often the first step involves employers requesting that an employee undergo an independent medical evaluation (“IME”). Usually, an employment contract or policy will set out the circumstances by which employers can direct an employee to undertake a fitness for work or independent medical assessment. Whatever the source of the entitlement for an employer to direct an employee to undertake an IME, the direction must be reasonable. Some situations which may be considered reasonable include the following:
- There has been a genuine indication that an IME is required. For example, an employee who has been absent from work for a prolonged period without sufficient explanation. Or when there is inconsistent information available to the employer about the state of health of an employee.
- Where an employee has suffered an injury or illness and is seeking to return to work and the employer requires medical advice on the employee’s capacity and fitness to undertake the inherent requirements of their position.
- There is a legitimate concern that a particular illness or injury will impact the employee from undertaking the inherent requirements of their position, or impact (or risk) to others in the workplace.
- Is the IME being obtained to genuinely ascertain, independently, whether the employee is fit for work.
IME’s are also used by employers to receive more information, often from a medical specialist, about the nature of an employee's illness or injury. Including the employee's capacity to work, anticipated recovery time or return to work, and any suitable duties which may be performed.
Unfortunately for employers, there is no “one shoe fits all” approach to managing ill or injured workers. And each approach taken will need to be tailored to each specific circumstance and injury.
However, employers should be aware of their legal obligations which include:
- Workplace health and safety obligations
Under the Work Health and Safety Act 2011 employers have the primary duty of care to ensure, so far as reasonably practical, that workers and other persons are not exposed to health and safety risks.
Workplace health and safety laws also include protections for employees who have suffered work-related injuries in that they cannot be terminated for a specific period of time (and penalties for employers who seek to terminate them within that timeframe).
Workers usually encourage employees to get back to work as soon as they are able. Generally, employers have an obligation to develop a rehabilitation and return to work plan for the worker which is based on medical advice.
- Anti-discrimination obligations
Queensland anti-discrimination makes it unlawful to treat workers less favourably because of a physical or mental condition. It also requires that employers consider making reasonable adjustments to help the worker perform the job.
Employers should seek to act upon available and current medical information about an employee’s capacity to work now and in the future. However, a balance must be struck between meeting the employer’s needs, workplace health and safety obligations, and the needs of the injured or ill employee.
If you require advice on managing ill or injured workers, please contact our team at Preston Law today on (07) 4052 0700.