Long-Term Sick Leave: Employees Must Cooperate With Return-to-Work Assessments
A recent Fair Work Commission decision provides an important reminder for employers managing employees who have been absent on long-term sick leave: employees cannot simply provide ongoing medical certificates without engaging in the process of determining whether they can return to their role.
Managing long-term illness or injury can be difficult for employers. Businesses need to balance compassion and support for an employee with their obligations to maintain a safe and productive workplace.
A recent Fair Work Commission decision, highlights the importance of both sides cooperating when an employee’s capacity to work is uncertain.
What happened?
The employee had been absent from work on sick leave for an extended period. Medical certificates from the employee’s treating practitioner indicated that, at best, the employee could work four hours per week performing “non-stressful” work.
However, the employee’s substantive position was a full-time role involving:
- time-sensitive work;
- ongoing monitoring and follow-up; and
- regular communication with various stakeholders.
The employer considered that the medical information provided was too vague to determine how the employee could safely and effectively return to work. The employer therefore requested further medical information so it could properly assess whether reasonable adjustments could be made to enable the employee to perform the inherent requirements of the position.
The employee argued that the medical certificates were only temporary and that the employer should have proposed alternative duties or different arrangements for the employee’s doctor to consider. The Fair Work Commission did not accept that argument.
The Commission noted that essentially identical medical certificates had been provided for more than six months. The certificates indicated that the employee could not meet the inherent requirements of the role. The Commission found that the employee was required to cooperate with the employer’s reasonable request for further information.
Employees cannot simply leave the employer to work it out
The decision reinforces an important principle. Where an employee’s medical condition prevents them from performing their normal duties, the employer may need information about the employee’s capacity, restrictions and likely return-to-work prospects to determine whether reasonable adjustments are possible.
An employee cannot necessarily provide a medical certificate saying they can only perform vague or highly restricted duties and then leave the employer to determine how the employee could return to their substantive position.
In this case, the Commission found that the employee could not simply provide certificates of capacity and effectively leave the employer with the responsibility of determining what adjustments might be appropriate.
What are an employer’s obligations?
Employers should remember that having an employee on long-term sick leave does not automatically mean that the employee can be dismissed.
Under the Fair Work Act and discrimination laws, employers need to carefully consider the employee’s circumstances, including whether the employee can perform the inherent requirements of the position, with or without reasonable adjustments.
This may involve obtaining appropriate medical information about:
- the employee’s current capacity;
- restrictions on the employee’s duties;
- likely recovery or return-to-work timeframes;
- whether the employee can perform the inherent requirements of the position;
- whether a graduated return to work is possible; and
- whether reasonable adjustments could enable the employee to return.
Employers should focus on the information necessary to assess capacity and workplace requirements, rather than seeking an employee’s entire medical history.
Reasonable adjustments need to be realistic
Reasonable adjustments may include changes such as reduced hours, modified duties, altered start and finish times, or a graduated return to work. However, an adjustment does not necessarily have to be accepted simply because it has been suggested.
The adjustment must still enable the employee to perform the genuine requirements of the position, and what is reasonable will depend on the circumstances. For example, an employee being able to work a few hours per week performing unspecified “non-stressful” duties may not be a practical adjustment where the substantive position requires full-time attendance, time-sensitive work and regular stakeholder communication.
Practical steps for employers
When an employee has been absent for an extended period, employers should consider the following:
1. Keep communication open
Maintain appropriate and respectful communication with the employee rather than allowing a long-term absence to continue without review.
2. Obtain appropriate medical evidence
Ask for information that is relevant to determining the employee’s capacity to perform their role and whether adjustments may be possible.
3. Explain why the information is required
Employees are more likely to cooperate when the employer clearly explains that the information is required to assess their capacity, workplace safety and possible return-to-work options.
4. Consider reasonable adjustments
Don’t automatically assume that an employee must return to their previous duties immediately. Consider whether a graduated or modified return is appropriate.
5. Review the position’s inherent requirements
Be clear about what the job actually requires. The question is not simply whether an employee can perform some work, but whether they can perform the inherent requirements of their particular position.
6. Document the process
Keep records of medical certificates, requests for information, meetings, proposed adjustments and the employee’s responses.
What does this mean for employers?
This is a useful reminder that managing long-term sick leave is a two-way process.
Employers have obligations to consider reasonable adjustments and support an employee’s return to work. However, employees also need to cooperate with reasonable requests for information where that information is necessary to determine whether they can perform their role and what adjustments, if any, may be appropriate.
If an employee refuses to provide relevant medical information over an extended period, an employer may ultimately have grounds to consider termination. However, this should not be treated as an automatic right to dismiss. Employers should first ensure that their requests are reasonable, specific and genuinely directed at determining the employee’s capacity and return-to-work options. They should also give the employee a proper opportunity to respond.The key message for employers: long-term sick leave should be actively managed. Compassion for an employee’s circumstances and the needs of the business are not mutually exclusive, but both need to be addressed through a fair, documented and evidence-based process