Do you have to keep an employee’s position open if they need to take extended time off due to contracting long COVID? And what’s a reasonable amount of time for them to take off? An expert shares some legal considerations for HR.

An employee recently came forward with claims that she was unfairly dismissed in March this year after taking sick leave for almost three months to manage complications from COVID-19.

The details of the case, as published in the AFR last week, also indicate she had notified her company of a pre-existing illness that causes chronic pain when she was hired nine months earlier.

While the employee claims she was dismissed due to the accommodations she required to manage her disability, as well her prolonged period of sick leave, the company maintains that the reason for termination was because she was unable to perform the inherent requirements of the role.

A spokesperson from the company told HRM: ” [We deny] that [we] took any unlawful adverse action against [the employee] and will be defending the proceeding.”

As many employers are now supporting employees who are grappling with long-term COVID-19 complications, it’s likely that more  cases of extended sick leave will surface in the coming months.

“We’re seeing much more absenteeism and people using up sick leave faster than before,” says Robin Young, Partner at Holman Webb Lawyers.

“There’s a lot of uncertainty out there at the moment for people who are unwell.”

Young explains some key legal considerations for employers to keep in mind, as well as how to best support employees managing long COVID.

Temporary absence

If an employee needs to take extended leave to manage long COVID, employers might be left wondering how long to keep their position open for.

Under the Fair Work Act, it’s unlawful to terminate an employee because of a temporary absence.

“A temporary absence is prescribed to be three months and that three months doesn’t take effect until any accrued personal leave entitlements have been exhausted,” says Young.

“That simply means you can’t be terminated because of a temporary absence from work because of illness or absence. However, you can be terminated for other reasons.”

To determine whether the absence is likely to be a temporary one, employers will need to turn to expert medical advice.

“This isn’t something that an employee can make a determination on. It’s not enough to say to an employee, ‘We don’t think you can perform the inherent requirements of the role. Do you agree?’ An employer that does that is going to fall short. They need to go to the treating doctor and if the doctor says the employee can’t work, ask them how long that’s likely to be the case for,” says Young.

If the doctor says the employee won’t be able to perform their job for the foreseeable future – i.e. beyond the period of sick leave plus a three month absence – or that they aren’t sure how long the employee will be unable to perform their role, then the employer may be entitled to terminate their employment.

“That would suggest the employer is on solid ground for being able to say the employee can’t perform the inherent requirements of the role.”

If, however, the employer receives medical advice confirming the employee will be able to work in the foreseeable future, the employer would be required to make accommodations for the period of sick leave plus three months (more on that in a moment).

In this situation, an employer can ask to receive regular updates about the employee’s health.

While there’s no hard and fast rule about how often an employee would need to provide an update, greater frequency is generally the preferred option, says Young.

“I think it’s better if the employer is provided with short-term medical certificates rather than one letter that covers a very long period.”

Most employers want to be updated so they can make plans and decide whether work needs to be redistributed for a certain period.

It also helps to keep the communication flowing between the employee and employer.

“It’s inevitable that when an employee isn’t at work, the connection between them and their employment becomes strained and less tangible,” says Young.

“Even though it’s an employee’s time off to get better, it’s still important for them to have some sort of contact with their employer and let them know how they’re travelling.”

Making accommodations 

Given the large number of people experiencing complications from COVID-19, as well as the current state of the labour market, many employers may be willing to make accommodations in order to keep employees on board.

“I think employers would be really reluctant to just say ‘no’. Employing a new person generally is a much more expensive proposition than holding onto the ones you already have,” says Young

“It’s smart for both the employee and the employer to be open to consulting on these issues.”

So what can employers do to support employees with long COVID who might require a longer time off work?

One option could be to let staff take unpaid leave for a period, but there are also other options that might be more advantageous to the employee.

“Companies could agree to make an arrangement whereby employees can take leave at half pay for a period so it takes twice as long to use it up. 

Employees can rest assured that their employment will continue, and they’ll continue to get paid and accrue entitlements.

It’s also critical to treat each situation on a case-by-case basis, as employees will differ in the level of communication and support they need from an employer while they’re on leave.

“Some employees want to be left alone for a while to get better. Others will want to know that they’re still being thought of.”

This is particularly true for employees who may be anxious about another person coming in to fill their shoes during the period of absence.

“If you’re bringing in a contact worker, be really transparent. Make sure that the workforce knows what’s happening, make sure the worker you’re bringing in knows it’s temporary, and make sure the employee concerned understands the situation. 

“You don’t want them thinking that this new person is being brought in to push them out. A lot of people get very nervous about that and understandably so.”

How are you supporting employees with long COVID? Join the AHRI Lounge today, exclusive to members, to share advice with other HR professionals on topical workplace-related topics like this.

Returning to work

When an employee with long COVID returns to work, that won’t necessarily mean all symptoms of the illness are behind them.

Fatigue can persist for a number of months, and some employees may experience other symptoms including brain fog, memory loss or shortness of breath.

“I’ve even seen this happen to people who didn’t have severe COVID symptoms at the time of infection,” says Young. “Employees are hoping that their workplace will show some empathy and provide accommodations so that they can still work in some capacity even if they are lethargic and unable to concentrate for long periods of time.”

Companies can support employees with long COVID by looking for ways to accommodate their needs and providing flexible work options.

“Creating some flexibility enables people to perform the inherent requirements of their work,” says Young. “Having the option to work from home could be one way of doing this.”

This might help an employee to conserve their energy if they aren’t commuting to work, and could mean they can more easily take time out to rest during the work day.

It could also help to ease an employee’s fear about returning to the workplace if they’re worried about the possibility of reinfection. This fear might be exacerbated for employees with infection complications in light of recent research which found people with long COVID may have a greater risk of recontracting COVID.

It’s also important to ease an employee back into the regular flow of work. Don’t assume that they can maintain the same level of productivity, or take care of the same number of responsibilities that fell under their domain prior to getting COVID. But also don’t assume that they can’t. The return-to-work plan should be created alongside the employee to ensure it meets their unique needs.

“As a business, you want to show that you’re taking care of your people,” says Young. “If the employee is receiving that kind of message, they’ll feel much more supported. They’ll want to be loyal to your business. You’re facilitating a much better culture and way of working.”