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
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.
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.
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
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
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
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.
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