By Brigitta Polous
“My employee has taken a lot of sick leave – what can I do?” This is a very common question asked by employers, and it can be frustrating to feel like your employee is never at work. And while every situation is different, certain risks and challenges arise when dealing with employees taking excessive sick leave, and these mustn’t be overlooked or misunderstood.
Every day, our workplace relations experts handle many calls about sick leave, so, here we outline some of the most common issues and questions businesses ask when dealing with extended periods of sick leave.
Proof please: what evidence requirements exist for sick leave?
Paid personal leave, which includes sick leave, is available to employees (other than casuals) who are unfit for work due to a personal injury or illness.
When taking personal leave, employees have an obligation to notify their employer of their absence and provide reasonable evidence when requested that the leave is taken for a permitted reason. Reasonable evidence can include documents such as a medical certificate stating the employee is unfit for work, or a statutory declaration. Once requested by the employer, the evidence must be provided as soon as practicable.
Extended periods of sick leave
When an employee is on an extended period of absence from the workplace due to personal illness or injury, this can create uncertainty and other challenges for a business. You may find yourself asking questions such as:
- Can I hire someone to replace them?
- Will the employee be able to perform the same role when they return?
- Is the employee even going to return to work at all?
- Can we terminate them?
As a business, you need to be mindful of certain employee protections that restrict how you can respond in these situations.
What are the risks and restrictions employers face?
It is unlawful under section 352 of the Fair Work Act 2009 to terminate an employee because the employee was/is temporarily absent from work due to illness or injury.
An exception to this is if the absence extends for:
- more than three consecutive months; or
- a total of not less than three months over a 12-month period and the employee is not on paid personal leave for the duration of the absence.
This means an employee who has been absent from work due to illness or injury for more than three months will lose their protection against this type of dismissal.
However, whilst employees may lose this particular protection, this does not mean employers should terminate immediately. An employee who is dismissed on a period of absence due to illness or injury will still have access to other workplace claims such as unfair dismissal claims (depending on their length of service), general protections claims, as well as a discrimination claim under the relevant Federal or State anti-discrimination laws.
What are the rights of employers?
As an employer, you need to navigate the protections afforded to employees, but you still have the right to request reasonable evidence of the illness or injury and ensure the employee complies with reasonable directions during their absence.
When considering whether to terminate an employee due to an extended absence, employers must ensure that they follow a proper process, such as a medical capacity review, to determine whether the employee is capable of performing the inherent requirements of the role. In addition to this, steps must be taken to determine whether any reasonable adjustments can be made to the role to facilitate the employee’s return to work. Medical evidence and recommendations are key here.
This article only touches on just a few of the many considerations that must be made concerning employees with prolonged illness or injury. State-based legislation further complicate the process when an employee has been injured at work and is in receipt of workers compensation payments.
These situations can be very sensitive and create a high risk of a claim, and we strongly recommend you contact the Workplace Relations Consultants at HR Assured for advice and support on your specific circumstance.
If you’d like more information about the benefits of becoming an HR Assured client contact us today for an informal chat.
Brigitta Poulos is a Workplace Relations Consultant at HR Assured who loves helping clients and businesses achieve excellent workplace compliance with their obligations and duties, and interpretation of relevant employment legislation and awards. She particularly enjoys researching and explaining new or ‘hot’ topics in the workplace relations and human resources fields to our clients.