What are an employer’s obligations in regards to sick or injured staff? AHRI:ASSIST answers some frequently asked questions.

Q. What does an employee need to prove to claim workers’ compensation?

A worker’s entitlement to weekly payments is influenced by their current work capacity, which establishes whether or not a worker can return to suitable employment (affecting the level of weekly payments). Work capacity is assessed by a medical practitioner, who records his or her opinion in a certificate of capacity.

Q. What are the employer’s obligations if an employee’s workers’ compensation claim is accepted?

If the employee is receiving weekly payments under the employer’s workers’ compensation policy, the employer will ordinarily have to keep open the employee’s pre-injury position during the first 12 months of payments and be in a position to return the employee to work in that position on an unrestricted or restricted basis, or to an equivalent position on an unrestricted or restricted basis.

This is known as the obligation to provide suitable employment.

For example, if a production worker receiving weekly benefits needs to work three months on restricted duties before being fit enough to resume full pre-injury duties, the employee may be required to provide these restricted duties.

Under Victorian workers’ compensation laws, this obligation starts on the earlier of the date that the employer receives a certificate of capacity or a claim for weekly payments, or the employer is advised by the agent of receipt of either of these documents.

The employment obligation period is not necessarily 52 consecutive calendar weeks. It doesn’t run during any period when the worker doesn’t have an incapacity for work or the claim is rejected (but it may restart if that rejection is overturned).

The employer can be relieved of the obligation to provide suitable employment only if it can show that to discharge the obligation would cause it unjustifiable hardship. This would be assessed having regard to:

• Detriment caused to the employer and any other employees.
• Estimated cost to the employer.
• Employee’s length of service.
• Extent to which employment caused the employee’s stress condition.
• Efforts by the employer to rehabilitate the employee.
• Sustainability of a return to work.
• Requirement for the employee to be retrained and whether the employee could be retrained.
• Number of other employees working on a restricted basis due to work-related injury.
• Employee’s potential to find suitable employment elsewhere.

Q. Does an employee accrue paid leave entitlements while absent from work receiving workers’ compensation?

Under Section 130 of the Fair Work Act, an employee receiving workers’ compensation payments under a Commonwealth, state or territory workers’ compensation law may accrue annual leave if the relevant workers’ compensation law permits this type of accrual. The Commonwealth’s and Queensland’s workers’ compensation laws unequivocally allow the accrual of annual, personal and long service leave. Queensland is the only jurisdiction that allows workers to take all of these leave types while on workers’ compensation. Tasmania is the only other state that unequivocally allows workers to take leave (annual and long service) while on workers’ compensation. In South Australia, the Australian Capital Territory and Tasmania, the ability to accrue some types of leave is unclear.

Q. Can I make an employee submit to a medical assessment by a doctor appointed by the employer?

Generally, no. However, if the employee fails to cooperate with reasonable requests for further medical evidence in order to determine the employer’s obligations under discrimination and unlawful termination laws, the employer is entitled to act on the information it holds.

Workers’ compensation legislation provides for requirements to submit to medical assessments arranged by the insurer as a condition for receiving workers’ compensation benefits.

Q. Can I insist that an employee is cleared for unrestricted duties before allowing them to return to work?

If the employer imposes this requirement, it might be inconsistent with its obligations under anti-discrimination and workers’ compensation legislation (see above).

Q. Are there any restrictions or prohibitions against requiring a medical examination as a condition of employment?

Anti-discrimination statutes permit prospective employers to refuse to hire applicants who don’t agree to undergo a medical examination, provided the prospective employer can show medical evidence is necessary to ascertain whether the applicant can perform the inherent requirements of the position, with or without reasonable workplace adjustment or accommodation.

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