What options are available to manage an employee who appears to be physically incapable of performing their job due to medical conditions that are non work-related?
Managing an employee’s physical incapacity to do their job can be complex. While individual situations will vary and specific advice should be obtained, there are some general principles that all employers should follow.
First, any decision about managing an employee who is physically (or mentally) incapable of performing their job must be based on current medical advice from an appropriately qualified medical practitioner.
Second, there are multiple legal obligations which must be carefully navigated when managing a physically incapacitated employee. These include obligations under work health and safety legislation and anti-discrimination and equal employment opportunity (EEO) legislation.
Employees can also make a variety of legal claims: discrimination claims, applications for unfair dismissal under the Fair Work Act, general protections claims under the Fair Work Act and applications for stop bullying orders. Appropriately managing an incapacitated employee will help employers safely navigate their legal obligations and the risk of legal claims by the employee.
Third, under anti-discrimination and EEO legislation, there is an obligation on employers to provide reasonable adjustments or accommodations to employees with a disability or impairment such as a physical incapacity. Reasonable adjustments or accommodations may include:
However, if the adjustments or accommodations required to allow the employee to perform their job would impose an unjustifiable hardship on the employer (for example, if they are prohibitively expensive, would impose unreasonably on other employees in the workplace or significantly adversely impact customer service) they may not be reasonable adjustments or accommodations and there may not be an obligation on the employer to provide them.
If you have apprehensions about an employee’s physical capacity, then start by talking to them. Outline your concerns and identify any risks to the employee’s health and safety in the workplace.
If you are concerned the employee’s health and safety may be compromised in the workplace, consider offering alternative duties on a temporary basis or ask the employee not to attend work while you obtain medical advice.An employee should be paid and leave should not be deducted if the employee is absent from work at their employer’s direction in order to obtain evidence about fitness. If you have any questions about the obligation to pay an employee who is absent in these circumstances, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
During this period offer the employee support through your organisation’s Employee Assistance Program and access to leave. It is also helpful to continue to maintain contact with the employee to try to ensure that the employment relationship does not begin to deteriorate.
If the employee hasn’t already provided medical information, seek consent from the employee to speak or write to their treating medical practitioner for advice about the impact of any incapacity on the performance of their job. In some circumstances, as an alternative or in addition to advice from the employee’s treating practitioner, it may be appropriate to seek the advice of an independent medical practitioner.
Once medical advice has been obtained, generally there are three possible outcomes:
It is important to note that there are set procedures that must be followed to end employment due to incapacity and there are significant claims that may be made against an employer if these procedures are not followed.
The procedures are too extensive to be detailed in this forum. However, some of the procedures involved include:
Ai Group sells a publication titled 'National Guide to Managing Ill & Injured Employees.' This guide details the processes to be followed for the management of an ill or injured employee, including the procedures for termination due to incapacity.The publication contains templates which employers can use as they move through the stages associated with the management of an ill or injured employee and potentially ending employment due to incapacity.
For more information about managing ill or injured workers, please call the Ai Group Workplace Advice Line on 1300 55 66 77.
