One of the questions Akyra is asked quite often relates to how to manage employees with ongoing illnesses who take extended periods of personal leave.
It can be difficult to balance concerns over an employee’s health with the needs of a business where it has the potential to pose a significant challenges for employers and workloads for co-workers.
So, what rights do employees have in relation to extended personal leave? And how should you as an employer navigate and manage these issues?
We’ve enlisted the help of Akyra’s trusted Legal and Workplace Health & Safety (WHS) partners to provide information that will ensure you’ve got all the facts when you need to deal with long-term personal leave.
Employees have certain legal protections regarding their employment in the event of ongoing illness and an inability to work.
According to Fair Work, employees who can provide evidence of their illness or injury are protected from being dismissed because of their absence if they’re away for less than three consecutive months or less than three months in total over a 12-month period, or if they are still using their paid personal leave.
It is also important to note that employees who use paid personal leave for the entirety of their absence cannot be dismissed by their employer because of their absence – regardless of how long they’re on leave.
Employee protections become more limited if an employee’s absence exceeds three consecutive months, more than three months in total over a 12-month period or if they have exhausted their allocation of paid personal leave.
Managing long-term personal leave
Considering these protections, what are the best ways for business to manage the challenges associated with long-term personal leave?
Managing Director of Akyra Strategy & Development, Margaret Goody, suggests it is important to be proactive when managing long-term personal leave and that the employer’s goal should be to facilitate an employee’s return as soon as is feasible.
Proactive management would include regular contact with the employee in question, regularly review of the employee’s condition and evaluating their readiness to return to work.
If it becomes apparent an employee’s absence will likely exceed two months, it is suggested the employer pursue a medical report in relation to the circumstances.
A medical report can be either an independent medical examination (IME) arranged and paid by the employer or request a medical report from the employee’s own treating doctor.
In either case, the employer would need to:
- discuss with the employee why a medical report is being requested and determine whether an IME or a report from the employee’s treating doctor is the best way forward; and
- provide a copy of the position description for the job held by the employee and a series of questions that relate to the employee’s inherent ability to carry out the responsibilities of their job.
It is, however, critical to remember employers cannot request medical information from an employee’s physician without the employee’s express permission.
It is also important to ensure an employee is not pressured to return to work before they are fit to do so.
As Michelle Pitman (Organisational Safety Manager from Virtual Safety Manager) observes, “pressure to return to work could result in a psychological injury to the employee. The aim of WHS Act is to protect employees from harm from both physical and mental risks. While there are proven benefits of returning to work (movement, morale, contact with teammates, relief from boredom), there are ways of ensuring the employee’s safe return to work from long term personal leave.”
She further explains that “similar to a work injury, the return to work and suitable duties process can be utilised to ease the worker back into the workforce in a safe and managed way. Options such as work from home, a gradual increase of work hours and days and altered duties could be considered.”
Each situation is different and will “need to be managed mindfully by all involved.”
When is termination an option?
If an employee shows no signs of being ready to return to work after an extended absence, when can the option of termination be considered?
If an employee’s absence has not exceeded the limits outlined by Fair Work (as above) or if they are still using paid personal leave, termination of employment is not an option.
Termination may, however, be an option once these conditions have been exceeded.
An employee’s ability to do the job they were hired for is another factor which may support terminating employment – e.g. an employee’s “inability to perform the inherent requirements of the position may be a valid reason for the dismissal of an employee.”
Termination of employment in these situations can become delicate and tricky; so Akyra recommends sourcing legal advice related to the particulars of each case is a sound option.
Jeanette Jifkins (Director and Commercial Lawyer from Onyx Legal) notes that advice to businesses on these matters can vary, depending on the existing relationship between employer and employee.
She explains that “if the relationship is good, we recommend consulting about options for the employee. It might be feasible to move them into a casual role or part time work from home pending their ability to return to the workplace – or it might not. When there is a good relationship, an employee will often be understanding of the employer’s predicament and understand that they need to be let go.“
Alternatively, “where the relationship is not amicable, we look at what is and isn’t realistic from the employer’s perspective. Often they need certainty around filling the role and the work being done and having a long-term absentee is a stress on the business. In those circumstances we suggest a process similar to a show cause process where the employer notifies the employee of the difficulty to the business and presents one or more options to the employee and asks for their feedback.”
In many cases, this cannot be done in-person, and “needs to be written in a compassionate and understanding manner, with appropriate timeframes that enable the employee to respond.”
Akyra’s key takeaways
- Long-term personal leave should be managed proactively, with managers staying in regular contact with the employee in question and regularly reviewing the situation
- Workers are protected from dismissal if their absence does not exceed three consecutive months, or three months over a 12 month period, or if they are using paid personal leave.
- If an absence exceeds these limits, actions such as termination may become an option
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to managing long-term personal leave. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
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https://www.hcamag.com/au/specialisation/employment-law/when-can-an-employer-terminate-a-worker-on-long-term-sick-leave/406344, https://www.fairwork.gov.au/leave/sick-and-carers-leave/long-periods-of-sick-leave, https://www.greenhalghpickard.com.au/can-an-employee-on-sick-leave-be-terminated/