In the second of the series on managing injuries and illnesses incurred outside of work, this weeks HR Highlight will explore the business requirements when employees request light duties for outside of work injuries and the best practice steps for managing a return to work.

Non-work injury review

In Part 1 of the series, https://acapmag.com.au/2020/01/hr-highlight-injured-outside-of-work-part-1-care-communication-and-entitlements/, we explored the nature of a non-work injury and the business requirement to seek information in a compassionate and professional way that will allow for the appropriate management of the injury.  The seeking of the diagnosis (what is wrong), the prognosis (when will the employee be well) and any suggested management steps (restrictions on activities) is an important part of the process in managing a non-work injury or illness. 

As outlined in Part 1, this communication should include notice to the employee that the business will require a Fit To Work Certificate from a doctor outlining that the employee is fit and able to undertake the inherent physical requirements of the role.  Once this clearance is in hand the business can return the employee to work as normal.  While this will be the case in many instances, in some the business may receive a Fit To Work Certificate that deems the employee fit to undertake work tasks, but with restrictions, or a light duties element to it.

Light duties request

When a work related injury occurs there is a requirement for the business to accommodate light duties requests wherever possible, and a requirement to activate workers compensation payments.  However, with a non-work injury there is no requirement on the business to create a light duties position, nor to provide workers compensation.

When a business receives a light duties request pertaining to a non-work injury or illness it is important that it consider the request.  In order to consider the request the business should ensure that it has a clear understanding of the prognosis, specifically how long the requested work restrictions will apply.  This may necessitate further discussion and correspondence with the employee and, through the employee, the doctor.  In addition to understanding the length of time and the detailed nature of any requested restrictions, the business should also have a clear understanding of the physical requirements of the role, and how core these are to the operation of the role.  Ideally these should be clearly stipulated in the position description for the role.

Armed with the information on exactly what is required of the role, and the nature and expected applicable timeframe of the restrictions, the business can then make an informed an appropriate decision as to whether the light duties request will be allowed.

Simple Injury and Return

In a simple case where an employee has sustained an injury to their knee while motocross riding on the weekend, the business has received a certificate from the doctor stating that the injury is a minor muscular tear and that with rest it is expected to heal in a matter of days, and that to assist in that healing the employee should avoid deep bending at the knee for a few days and should spend as much time sitting as possible, though the employee is also encouraged to walk, standing still is to be minimised. 

In such a case in an office setting it would be appropriate for the business to respond that such restrictions would be easily accommodated and would not impact on the operation of the employees core duties.  If there were some duties the employee may usually undertake, such as putting away paper or restocking printers etc, those could be reasonably passed to another employee for the short duration of the recovery period.  If the business did allow the return to work on with medical restrictions, it should be clearly communicated in writing what is being allowed along with a specific instruction that aligns with the medical certificates restrictions, as well as a date of review and the process for clearance.  This is important to ensure that the business has provided the employee with specific lawful instructions regarding their conduct in the restricted duties period, and if the employee ignores these instructions and further injures themselves at work, that such an injury is clearly also a breach of lawful instructions, failure to follow safety instructions and the responsibility of the employee.  In such a case this communication may look like this;

“The business has received your Fit To Work Certificate and notes that while your doctor has declared you fit to work there have been some restrictions noted, specifically that you must avoid deep bending at the knee, that you must spend as much time sitting as possible, that you are able to walk but not to stand still for extended periods of time.  As per the certificate the business understands that it is anticipated that these restrictions will only be required for a few days. 

Given the nature of your role and the short duration of the restrictions, it is considered that the business can accommodate these restrictions at this time and that on that basis you can return to work. Based on the current certificate calling for these restrictions to be in place for a few days the business has decided to place the restrictions in place for one week, on the basis that you will see your doctor again before the end of the week and be reassessed for your fitness to work. 

As before the business will need a Fit To Work Certificate at this time; should you be given the all clear at that time you will be returned to normal duties with no restrictions, should the restrictions be extended or modified by the new certificate then the operational impact of that will be assessed at that time and communicated to you. 

It is important for you to note that the business is concerned for your recovery and that you do not further injure or reinjure yourself, as such this is a specific instruction that you will not; engage in deep bending at the knee, if ordinary work tasks would usually require you to bend at the knee you are instructed to leave that task undone (reporting it to your manager so that it can be reallocated) or to see assistance from another staff member (explaining your temporary restriction); you will avoid standing still and will instead walk or sit as per the restrictions of your medical certificate.  It is important that you understand that failure to follow these instructions, which are designed to keep you safe, will be treated seriously and may result in termination of your employment. 

The business wishes you a speedy recovery and is happy to be able to assist you at this time by the provision of light duties in this manner”

In such a case in a retail setting there are additional considerations.  In a retail setting it may be appropriate for the business to allow for the lack of deep bending by removing the need to clean low shelves or move stock, however the implication of addressing emergencies like spills, and the impact of the nature of retail, a standing role, would potentially rule out the ability to offer a light duties approach.  Assuming that the service station is such that a single person is on duty at any time, it would be impossible to protect the employee, ensure a lack of reinjury and ensure that the business staff had the full capacity to respond to emergencies onsite as required, in such a case it would be appropriate to deny the request for light duties.  In such a case a communication such as below may be provided;

“The business has received your Fit To Work Certificate and notes that while your doctor has declared you fit to work there have been some restrictions noted, specifically that you must avoid deep bending at the knee, that you must spend as much time sitting as possible, that you are able to walk but not to stand still for extended periods of time.  As per the certificate the business understands that it is anticipated that these restrictions will only be required for a few days. 

Given the nature of your role as a Console Operator who must not only; bend to put away stock and clean, but also to respond to emergencies such as spills; but also spend significant portions of work time standing still at the counter; the business has determined that it would not be appropriate for you to return to work given the nature of your restrictions and the core requirements of the role.  The business does not make such a decision lightly and did consider and discard several options including; the use of a chair in the counter area, shifting all stock pack and cleaning tasks to staff on duty before and after you.  While it is considered that these approaches may have allowed for some comfort in meeting the combined concerns of recovery restrictions and business need, the real need to be able to address spills and other emergencies, as well as clean unforeseen items instore (mud, breakages etc) mean that the business can not ensure your safety and that of the business and its customers, given your current restrictions. 

The business wishes you well in your recovery and reminds you that when you are ready to return to full pre injury duties the business will need to see a Fit To Work Certificate from the doctor outlining that you are fit and well to undertake all of the physical requirements of the role.  Once this has been received you will be returned to the roster.”

Remember in both cases the business should remind the employee of the leave available to them, be it paid or unpaid.

Complex Injury and Return or Extended Recovery?

More complicated non-work injuries or illness, particularly those that have an extended recovery term offer further considerations for the business.  What do we do if the employee is going to need restrictions long term?  What do we do if the employees recovery does not go well?  What do we do if the employee is unfit for a long time?  What do we do if the employee will never be fit for work? 

These questions cause businesses and staff significant angst and will be the focus of the next instalment of the series, Part 3:  Extended Recovery and Permanent Incapacity.

Here to Help

ACAPMA members are reminded that the ACAPMA Employment Professionals are available to assist with employment, safety and training compliance. For more information email employment@acapma.com.au

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au its free for members. ACAPMA membership is affordable at only $880 per year for a single site and valuable with sites gaining HR and IR advice support and representation as well as a raft of other benefits and discounts.