Prolonged sick leave "triggers" OHS obligations: Case study
Employers faced with the prolonged absence of a sick employee - and a "spider's web" of associated legal obligations - are often scared into making hasty decisions, or paralysed by indecision, says workplace lawyer Brad Petley.
Information requests reasonable and necessaryThe case, reported by associate publication OHS Alert, involved a worker who was on sick leave for 20 consecutive weeks. He provided his employer with consecutive up-to-date medical certificates, but refused to divulge any information about the nature of his illness.
When the worker's paid leave was exhausted, his manager informed him by letter and asked when he was likely to return. After receiving no response, she left a message on his phone and sent a second letter.
A month later, the worker emailed the manager saying he was "unfit for duty due to an impairment". When requests for information on the expected time frame for his recovery and any limitations he might have on his return to work elicited no response, the company's HR director wrote to the worker seeking the medical opinion of his treating doctor.
The letter warned that without necessary information to facilitate his return to work, the only option would be to terminate his employment.
The worker wrote back saying he would only consent to an examination for capacity once his doctor cleared him to return to work. The employer sent a further letter reiterating the request. The worker did not respond and his employment was terminated.
Before Fair Work Australia, the worker claimed his employer had dismissed him unfairly and made "unduly invasive" requests for medical information which, if disclosed, could have led to stigmatisation and discriminatory treatment at work.
Fair Work Australia found the employer's actions were reasonable and, due to its OHS and duty of care obligations, necessary. Management did not seek specific details but general information that would assist the worker's return to work, it found.
The employee's failure to communicate hampered his employer's capacity to manage work requirements, and the worker had no basis for thinking medical information would be leaked or lead to discriminatory treatment.
Reasonable processes, justified actionsThe case offers a positive example of a comprehensive process that was "almost without criticism" from Fair Work Australia, says Petley, solicitor director at Acumen Lawyers.
"The employer took reasonable steps to determine when the employee might resume work and what adjustments might be required at work for his return." Its actions were in compliance with its OHS obligations, and its duty of care to all employees, he says.
After the worker's prolonged absence:
"Sometimes employers might become aware that an employee doesn't have the capacity to communicate at a particular point in time, so then an employer may hastily or unreasonably take a failure to respond to a communication as disobeying an instruction... but there was no such evidence here."
Another trap the employer avoided was "playing doctor". Employers should always act on medical evidence and never make "unqualified assumptions or unsupported conclusions". Some, however, act in haste. If they don't hear from the employee for a short period of time, or a medical certificate doesn't turn up on its due date, they try and "short-cut" the process by assuming the employee has abandoned their position.
Only when a worker's paid sick-leave expires and the further three-month period dictated by the Fair Work Act expires beyond that, is an absence due to illness or injury no longer considered a protected short term absence, Petley says. If an absence is not prolonged, and the employee is complying with their obligations to provide medical certificates, there should be no reason to be concerned or to seek further information.
But once that protected period nears its end and if the absence is prolonged, "that in itself gives rise to concern... as to whether this person might be able to return or whether limitations may apply", and can warrant enquiries about the general nature of an illness and the expected recovery time.
The employer in this case also acted wisely by having written communication couriered to the employee, Petley says. "Particularly if there's an underlying issue where there might be a tension in the relationship between employer and employee, there is a risk that the employee may deny communication if they are able to."
Investigation an obligationWhenever an employer receives notice of a medical condition that "triggers" their OHS obligations - such as an "incomplete picture" of an employee's capacity - they need to investigate, Petley says.
In this case, Fair Work Australia recognised that the employer was acting in the interests of the individual, the business, and other employees.
The employer knew the worker was unfit for work for an indeterminate time but had no idea why. It could not even rule out a work-related injury, and was obliged to find out more. Further, if the employer allowed the worker to return "without any understanding of the nature of his illness and any limitations that might apply", it could be placing the worker and others at risk.
While employers should be careful not to seek more information than necessary - in this case, general information, not specific details, were requested - they might have grounds for specifics depending on the situation, Petley says.
"If there's open communication with the employee, [the worker] may volunteer that information" - but depending on the situation, further advice from medical professionals might be needed.
Once obtained, medical information should be divulged only on a "need to know basis". In this case, "the information would be handled by the HR manager and this employee's supervising manager", he notes.
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