Have one of your employees been injured outside of work? Do you, as the employer, have an obligation to provide assistance to your employee?
YES!
Employer obligations
Employers are required to provide appropriate support and assistance to their employees who suffer a non-work related injury/illness or medical condition
Ensuring the injured worker can return safely to work as soon as possible and to ensure that they are not treated unfavourably because of their injury or illness
Where practicable, employers should give consideration to requests for an early return to work to assist employees
Employers also have an obligation to keep an injured or ill worker’s position open according to legislation
If a worker is unable to perform their core duties, the employer is not expected to keep a position open indefinitely or make adjustments that cause unjustifiable hardship
Definition
A non-work related injury/illness refers to an injury or illness that did not arise out of, or in the course of the workers employment and includes all workers’ compensation claims where liability has been denied by WorkCover.
An injured worker includes a person with a temporary or permanent disability, physical or otherwise.
Legal requirements
In Australia, it is against the law to discriminate against an employee because of an injury or illness, including a non-work related injury. Under national and state equal employment opportunity and anti-discrimination laws in the workplace, employers have a duty to take reasonable measures to eliminate discrimination, sexual harassment and victimisation as far as possible.
Discrimination in the workplace against an injured worker is against the law and employers are required to treat workers who are injured or ill fairly, regardless of whether the injury was sustained at work or outside the workplace. Employers are also liable if staff members discriminate against each other because of injury or illness. The employee may say they are being discriminated against because they have a disability and they’re being treated differently from other employees.
Return to Work (RTW)
Supporting an injured worker to return safely to work as quickly as possible is good for business productivity, and supports equal opportunity good practice. It assists the worker to reduce the financial and emotional impact on themselves and their family, and can be an important factor in helping them recover and return to normal life.
Following a period of absence from the workplace due to a non-work related injury or illness, an employer has a duty to assist the injured worker with returning to work through a RTW arrangement. Some planning is essential to ensure a smooth return, and communication amongst all persons involved.
With any approved RTW arrangement, co-operation and consultation between management and the ill/injured employee is essential to ensure the health and safety of both the ill/injured employee and other employees at the workplace, and to ensure there is no risk of further injury or aggravation.
A RTW arrangement may not be granted where the medical condition is not temporary and the associated (medical) restrictions and provision of suitable duties are onerous or impractical. An employer should:
Ensure that the worker is given appropriate and meaningful duties and assistance
Grant the worker enough time to recover from the injury or illness and apply a reasonable return-to-work plan with appropriate timeframes
Make reasonable changes to the workplace or hours to help them return safely
Consider workplace support aids or modifications to assist their return to work
Ensure they are not treated unfairly, bullied or harassed because of their injury/illness
Consider any restrictions or limitations to the role – this will help clarify any modifications or adjustments required
Any RTW arrangement, must be based on sound risk management principles and on the assessment undertaken of the worker. Before returning an injured worker to work, an employer must consider their WHS obligations to ensure the health and safety of every employee and how they may be affected by the duties of an injured worker. They also need to ensure they can provide a safe working environment for everyone that may be impacted by the duties of an injured worker, including other workers, contract staff, clients and customers. The employer must assess the impact of the injury on the work tasks and any use of plant and equipment, what they can do safely and have a right to check with a doctor whether a worker can do their job safely.
