In the third of the series on managing injuries and illnesses incurred outside of work, this weeks HR Highlight will explore the business requirements when employees are facing an extended recovery time or permanent incapacity and the best practice approach the business must take to managing physical incapacity.

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.

In Part 2 of the series, https://acapmag.com.au/2020/01/hr-highlight-injured-outside-of-work-part-2-light-duties-request-and-return-to-work/, we explored the requirements when an employee is declared fit to work, but with some restrictions, often called a light duties request or a return to work restriction.

As outlined in Part 2, there is no legal requirement to provide light duties to an employee injured outside of work, though there is a requirement to consider if the requested changes could be accommodated for the time period that they will be required, and to not unreasonably refuse them if they can be accommodated.

For simple injuries and illnesses managing this element of light duties requests is a function of asking; “can the business accommodate the requested changes?” AND  “for how long can the business accommodate the requested changes?”.  So when the employees injury or illness is categorised by the doctors as having a long prognosis, or extended recovery period, one where the modifications to work would be required for a long time; or for situations where the nature of the employees illness or injury is such that they will never be able to return to their original pre injury duties; further considerations and communications are required.

Extended, Prolonged and Permanent Incapacity

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; Work Restrictions Extended

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 the case where the business accommodated such restrictions, like in all cases, it would seek a Fit To Work certificate from the doctor at the end of the agreed restriction period stating, with reference to the physical requirements of the role (which should be in every position description) that the employee is fit to return to ALL pre injury duties without modification or restriction.

However, in some cases, people need more time than expected in healing.  If, at the end of the original period of restriction, the doctor finds, that on reassessment the employee will need more time with the restrictions, or more restrictions, the business has to start the process all over again.  The accommodation of the original light duties request was based on the prognosis being short, as well as the restrictions being manageable in a short timeframe.  The change to this situation forces a reassessment.  The same process should be followed; gather information about the prognosis (how long until the employee returns to full work capacity) and the restrictions requested; assess if they are reasonable to allow; provide the employee with the businesses decision in writing outlining the reasoning.

In this case if the business decides to allow for another period of light duties and work restrictions, it should very clearly state that; “this agreement is based on the latest medical certificate, which states an expected return to full capacity by XX/XX/XXXX, as such a Fit To Work certificate will be required by XX/XX/XXXX and your return to full duties.  If, at that time you are considered by your doctor not to be fit for full work duties the business will assess that situation at that time”.  This approach ensures that each application is considered and responded to in and on its own merits.

If the periods of restriction continue to be extended over time, then the business should consider if the principles of prolonged recovery should be applied (see below).

Complex Injury; Prolonged Recovery

In a more complicated case, where an employee has suffered extensive injuries, or will require extended recovery, it is important that the same approach is followed, and that communication lines are kept open.

If, for example, the employee has a car accident outside of work and initial communication with family highlights that it will be some time until the doctors are sure the extent of her injuries.  The business should write to the employee, outlining that “it is understood she is recovering from an accident, and that accrued leave and entitlements will be made available to you as outlined below, and where paid entitlements are exhausted or not applicable unpaid personal and carers leave will be applied.  In the short term the leave being applied is personal and carers leave, but the business will continue to reach out to you to confirm your choice of applied leave.  We wish you a speedy recovery, and the business requests that as soon as practical could you please have your doctor forward a medical certificate outlining the impact of your injuries and when it is anticipated you will be fit for work so that the business can process the leave and implement an appropriate contact and review process.”

The business should continue to remain in contact with the employee, and on receipt of the medical certificate, assess if any requested restrictions can be reasonably met based on the restrictions and the timeframe.  As with an extension of work restrictions this is likely to come in waves of assessment, decision and communication as the employee recovers, and each wave should be clearly identified with a review date and an assessment of approval or refusal “at this time”.

If the periods of leave due to injury become extensive, that is three months or more after accrued personal leave has been expended, or the restrictions are proposed to carry on for longer than three months, then the business should consider if the employee can meet the inherent physical requirements of the role and if termination for failure to meet the inherent physical requirements of the role may be appropriate (see below).

Complex Injury; Permanent Incapacity

The most drastic of cases are those where the illness or injury clearly removes the employees capacity to undertake the inherent physical requirements of the role, where the nature of the illness or injury is such that no amount of appropriate work restriction or modification would result in the employee being able to meet the basic physical requirements of the role.  For example, if an employee suffered an injury that completely removed their capacity to speak, then no amount of time or modifications would allow them to continue in their role as a console operator, where communication with customers, colleagues and emergency services is an inherent requirement.

Termination Due To Inability To Meet The Inherent Physical Requirements Of The Role?

In such a case when the business is presented with a diagnosis and prognosis that states the employee has lost the ability to speak and will not regain it the employee will be considered to have permanent incapacity.  These cases can be devastating to the employee and extremely difficult to manage for the business.  While many businesses will explore possible redeployment options with the employee, to other roles that may be available within the business that do not require the skill or capacity that has been lost, the business is not obligated to create a position, nor to continue to employ an employee whose injury or illness has resulted in permanent incapacity.

The business should follow a rigorous process however, in exploring capacity, confirming its understanding, and communicating with the employee.  There will be a need for second opinions and detailed Show Cause letters and many conversations with the employee all of which should be documented fully.

This last resort approach to managing a non-work injury or illness of a serious nature will be explored in the next instalment of the series; Part 4:  Termination for Physical 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.