Dealing with employees who are on long-term sick leave needs a proactive and sensitive approach. When an employee is off sick for a long time, this can negatively impact your ability to run your business. Due to the strain long-term employee absence places on a business, businesses may wish to take action promptly to achieve greater certainty. However, dismissing an employee on sick leave may expose the business to adverse action or disability discrimination claims. In this post, we have outlined the ways you can manage long term absences due to sickness.
Long-term absences due to sickness
Taking a ‘sickie’ or a ‘mental health day’ are common concepts in the workplace. Most absences are short-term, but sometimes the employee needs a longer period to recover from ill-health, and in some cases the employee may not ever be capable of returning to work and resuming their former role.
Employees other than casuals are provided with paid sick leave as part of the National Employment Standards (NES) contained in the Fair Work Act 2009. Permanent full-time employees are entitled to 10 days’ sick Leave every year of employment with the company, and any untaken leave rolls over to the next year. Part-time employees accrue leave pro-rata, according to the amount of hours they work. There are many types of HR software that can help you keep track of sick leave accruals, so you know much leave the employee is entitled to and if the sickness absence is paid. We can help you keep track of employee entitlements with our BrightHR software. Call us for free initial advice.
Once an employee who has been absent due to ill-health has exhausted their sick leave entitlement, they are entitled to take unpaid sick leave.
Steps to effectively manage long-term sickness absence
Here are some helpful tips to effectively manage employees who are on long-term sick leave.
1. Hold a welfare meeting with the employee
As part of an effective workplace absence policy, you should follow-up with any employee on sick leave absence, however short, to see how they are going and to get an idea of when you can expect them to return to work so you can plan and allocate resources to cover their absence.
As such, the starting point for managing long-term absence due to ill-health or injury is to have an informal welfare or compassionate meeting with the employee as soon as it is apparent that the sickness absence will be long-term. The employee should be notified of the meeting in advance and the purpose of the meeting should be outlined in the written invitation. Given the often unpredictable nature of illness, many businesses find it difficult to arrange for a written invitation to be delivered. As an alternative, some businesses incorporate these meetings into standard business practice, which is recorded in written policy.
The goal of this meeting is to discuss the impact of the illness or injury on the ability of the employee to perform their role, and to find out how best to support your employee and to discuss any reasonable adjustments that you can make to eliminate obstacles to returning to work.
2. Obtain medical certificates
The Employee should provide you with reasonable evidence, for example Doctor’s Certificates or possibly Medical reports to support their long- term sickness absence. After the informal meeting, if you still have concerns about the employee’s ability to perform their role safely, you may be able to direct the Employee to attend a medical assessment to determine their future work capacity if they don’t agree to provide more information as to their fitness for work, provided it is genuinely necessary and lawful and reasonable in the circumstances.
The employer should pay the cost of any assessment and the employer may require an independent doctor to perform the assessment so that an independent written medical report may be obtained, if it is not reasonable for the employee to use their own regular practitioner. You can direct the employee to attend an independent medical examination if the request is genuinely necessary to determine the employee’s capacity for work and lawful and reasonable in the circumstances. The report should be structured to address the employee’s ability to perform the inherent requirements of their role.
A medical report will help you assess the effects of the employee’s ill-health, how long the absence could last and if there are any adjustments you could make to support the employee’s ultimate return to work. But remember that privacy legislation imposes certain restrictions on employers who want to access their employee’s medical information and it may not be reasonable for an employer to have access to the employee’s full medical records. It will depend on the circumstances. Your medical records are confidential and an employer’s request for more information is generally only considered reasonable when it is required to determine, for example from a health and safety perspective, whether you are fit to return to work or to carry out moderated duties. Generally, you will need to obtain the employee’s consent to access the medical report.
3. Formal welfare meeting
Once the you have received the results of the medical assessment, you should invite the employee to a formal welfare meeting, again by giving them a written invitation in advance.
At this meeting the medical report should be discussed with the employee. The employer may have obligations under workers compensation, workplace health and safety, anti-discrimination or equal opportunities legislation to outline any reasonable adjustments they can identify that would potentially allow the employee to return to their pre-injury role, whilst the employer should invite the employee to offer their suggestions for consideration.
4. Reasonable adjustments and a phased return to work
Following the formal meeting, the employer should consider any reasonable adjustments that could be made to allow the employee to return to work. Any suggestions raised by the employee should be considered in depth.
Reasonable adjustments refers to any form of assistance or adjustment that is necessary, possible and reasonable to make to working arrangements, work methods, equipment or the work environment to reduce or eliminate the effects of the illness or injury so that the employee can safely and comfortably perform the inherent requirements of the role.
Some reasonable adjustments to consider are:
Phased return to work over a period of time
Changes in hours and amount of work
Alternative duties and/or change of location, possibly only during the return to work period, e.g. performing office duties or working from home instead of site-based or customer-facing
Any adjustments that need to be made to equipment or facilities e.g. special chair, handrails
Returning to work in phases is a common adjustment that is usually reasonable for both the employer and employee. How it is implemented is usually based medical information in the form of the employee’s medical certificate or report indicating their capacity for work.
When implementing a phased return, you should consider that the employee could be feeling anxious about returning to work, especially if the absence was due to psychological stress or mental ill-health. An employer should actively take steps to facilitate the employee’s reintegration into the workplace and ensure they feel their return to work is welcome.
Actively monitor the situation over some time to ensure your employee is coping well after returning to work. A phased return typically lasts for a number of weeks before the employee is able to resume their role full-time.
5. Keep in contact
If the prognosis is good and the employee is likely to return to work, albeit after an extend period of recovery, then contact them regularly to see how they are progressing and to track their recovery. An employee on long-term sickness absence may feel cut off and isolated from the social contact they usually get from work. By touching base regularly, you let your employee know that even though they are on sick leave, the company cares about their health and well-being and they have the company’s full support.
To ensure that your contact is not perceived as putting the employee under unfair pressure, particularly if the employee is absent due to mental Ill-health, communicate to the employee from the outset your desire to keep in touch and ask which communication channel like email or telephone they would like to use. Clarify that you want to maintain contact out of concern for the employee’s welfare.
Staying in touch with an employee on long-term sickness absence also helps you stay up-to-date with the employee’s progress and the likelihood of returning to work. This allows you to plan and allocate your resources and organise temporary cover more effectively.
6. Assess the impact of the employee’s absence on the business
Establish a written record of the effect of the employee’s continued absence on the company, both financially and on service provision and colleagues. If it is a workplace injury, your workers compensation insurance may kick in, or for example, you may now have to pay for extra resources, such as temporary staff, to cover the absence.
7. Dismissing an employee on long-term sickness absence
If you have had informal and formal welfare meetings with the employee, and have obtained medical assessments, and have exhausted all reasonable adjustment options to facilitate the employee’s return to work, but the employee is still unable to return, you may consider a dismissal based on their inability to perform the inherent requirements of their position as a result of injury or illness. This is called a Capabilities Dismissal.
However, employees are protected from dismissal on the grounds of illness, injury or disability through a number of overriding pieces of legislation, including the Fair Work Act 2009 (the Act), state and federal discrimination legislation, and state and territory workers compensation legislation.
Under the Act, employers are prohibited from dismissing an employee because of a temporary absence from work due to a personal illness or injury. However, an absence is no longer temporary where:
The total length of absence due to illness is more than three consecutive months OR
The total length of absence is a total of more than three months over a 12-month period AND
The employee is not on paid personal leave at the time of termination
The above indicates that if an employee continues to receive paid personal leave they will be protected from termination. Whereas an employee whose absence is made up of a combination of paid personal leave and other entitlements (such as annual and unpaid leave) will not be protected against dismissal.
In addition, the Act also provides that an employer must not take adverse action against an employee due to the person’s disability.
Anti-discrimination and disability discrimination legislation also make it unlawful for employers to discriminate against an employee on the ground of the employee’s disability. This includes circumstances where an employee is terminated.
In addition, if the injury or illness is work-related, state and territory workers compensation legislation can also prohibit employers from dismissing an employee within a specific period of time from when an employee incurs a workplace injury, which can be up to 12 months.
As this is a complex area, if you are considering dismissing an employee on a long-term sickness absence then call us for free initial advice.
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Frequently Asked Questions
How Long Can Someone Be Off Sick Before Being Dismissed?
It will depend on the circumstances, e.g. whether the employee is on paid or unpaid leave and whether they are on workers compensation or not.
If the employee is not on workers compensation, and the employee is not on paid personal leave at the time of termination then generally:
- The total length of absence due to illness is more than three consecutive months OR
- The total length of absence is a total of more than three months over a 12-month period
When Should I Resort To Dismissing An Employee On Long Term Sick Leave?
It will depend on the reason for the dismissal, and whether or not the employee is on workers compensation, or on paid or unpaid leave, and whether the dismissal could be considered discriminatory.
If you want to terminate the employee because they are sick, whilst the employee is not on workers compensation, and the employee is not on paid personal leave, then generally if the employee has been sick for more than three months consecutively or over the last 12 months, it may be reasonable to consider dismissal based on the employee’s incapacity to perform their role provided you have carried out a fair and reasonable process, (which includes meeting with the employee, obtaining medical assessments and considering any reasonable adjustments), and it is clear that the employee still will not be able to meet the inherent requirements of their role. Depending on the circumstances, you may still be able to terminate the employee’s employment on other grounds, for example in the case of redundancy.
How Do I Dismiss An Employee On Long Term Sick Leave?
It will depend on the reason for dismissal, for example, you may still be able to terminate the employee’s employment on other grounds than long-term sick leave, for example in the case of redundancy.
Employers are prohibited from dismissing an employee on a temporary sickness absence because they are sick, or generally on discriminatory grounds, or if they are on workers compensation.
If you want to terminate the employee because they are sick, whilst the employee is not on workers compensation, and the employee is not on paid personal leave, then generally if the employee has been sick for more than three months consecutively or over the last 12 months, it may be reasonable to consider dismissal based on the employee’s incapacity to perform their role.
If the absence is not temporary, and even with reasonable adjustments it is clear the employee cannot carry out the inherent requirements of their role then in certain circumstances an employer may consider a capabilities dismissal process:
- Informal welfare meeting to discuss informally the employee’s current diagnosis and prognosis in relation to their long-term ability to perform their role
- Direction to attend a medical assessment to determine the employee’s capacity to return to work in their pre-injury role
- Formal welfare meeting to discuss the medical assessment and report and any reasonable adjustments to facilitate the employee’s return to work
- Consideration of reasonable adjustments and employee suggestions to facilitate the employee carrying out the inherent requirements of their role
- Outcome meeting to determine whether the employee has the capacity to carry out the inherent requirements of their pre-injury role. If they cannot carry out their role even with reasonable adjustments then dismissal may be warranted.
Do I Give A Written Warning To My Sick Employee?
Taking disciplinary action and giving a written warning to an employee because they are on temporary sick leave will likely be considered adverse action which may have costly consequences for the business, and it is therefore not recommended. You may be able to take disciplinary action against the employee for other reasons while they are on sick leave though, depending on the circumstances.
Can I Make An Employee Redundant Due To Ill Health?
No. A genuine redundancy is when the employer does not require anyone to perform the employee’s role anymore, usually because of changes to the business structure or the business is closing down. While an employee can be made redundant while they are on sick leave, if they are made redundant because they are on a temporary absence due to sick leave the employee may have a claim for adverse action against the business.
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