When an employee’s health or mental wellness starts affecting their performance at work, employers naturally become concerned for their business. Generally, an employee is required to inform their employer that they are unable to work due to illness or injury, but employment agreements or company policies should set out specific procedures for notification of an inability to work.
Medical Information – What are you required (or not required) to share?
Most employment agreements provide Employers the ability to reasonably request a medical certificate from a healthcare professional to verify an employee’s absence, but they cannot demand a detailed diagnosis or the specifics of medical treatment without the employee’s explicit consent. Consent is often provided through the employment agreement. However, specific consent should still be sought by an employer.
The employer’s focus should be on whether the employee is fit for work, not the intricate and sometimes personal details of their health condition. This principle respects the employee’s right to privacy and medical confidentiality. The starting point should be based on what is permitted and required un the existing employment agreement.
Navigating Sick Leave
Once paid sick leave is exhausted, an employee may need to take unpaid leave if they are still unable to work due to illness or injury, but employers should always check the employment agreement before placing an employee on unpaid leave. Some employers may offer options like using accrued annual leave or other forms of paid leave.
If a medical issue continues long-term, the employee may need to discuss a phased return to work plan with their employer. Adjustments to the employee’s role or responsibilities, or the possibility of accessing long-term insurance whilst on unpaid leave, can also be explored.
Employees should explore their eligibility for any government-assisted benefits or insurance schemes that provide income support during periods of illness. It is important that there is open communication between the employer and the employee so that options can be discussed in good faith and plans made accordingly.
Employer Responsibilities and Concerns
An employer may be entitled to terminate an employee for medical incapacity where the employer reasonably believes that the employee is not currently fit and able to perform their duties, and they will not become fit and able within a reasonable timeframe, to perform their role. There are significant procedural requirements that must be met, even if the employee is in fact medical incapacitated and will not recover, before an employer can justifiably terminate the employee for medical incapacity.
If an employer has genuine concerns about an employee’s ongoing ability to perform their job due to health issues, it is important that they tread carefully and avoid breaching the employee’s right to privacy – obtaining consent to access information is key. How people portray themselves at work is often different to their personal circumstances, so the first step should be to engage in open and supportive communication with the employee. This way, the employer can understand the employee’s situation better, discuss potential accommodations or adjustments to the role, and explore possible solutions that could accommodate the employee to continue working effectively.
If concerns continue regarding the employee’s ability the work, the employer may consider a more formal process. Some employers, such as Police, often have a medical retirement or medical discharge process that can be explored.
This would normally involve requesting further medical information with the employee’s consent, seeking an independent medical assessment, and exploring options for reasonable accommodation, before terminating the employee’s employment contract.
It is important that employers follow a fair and transparent process, ensuring they comply with employment laws and act in good faith. If you are an employer needing to address your employee’s health issues, you should engage a lawyer to advise you on the process. Dismissal should only be considered as a last resort after exploring all other options and ensuring that the decision is based on legitimate, non-discriminatory reasons related to the employee’s genuine inability to perform the inherent requirements of their role, even with reasonable accommodation.
Medical incapacity issues can be complicated for an employer to navigate. Likewise, it can be stressful for an employee to face such scrutiny from the employer.
The first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.
