September 4, 2018

Injuries Sustained outside of work hours

When a worker is injured outside of work it can affect their ability to perform their job safely. It may also increase the risk of your business being held liable for the aggravation of a previous injury or condition.

Most illnesses and injuries sustained outside of work will not require action from the business. However, where the illness or injury results in the worker being away from work for an extended period of time or can impact on their ability to safely perform the essential functions of their role, intervention is advised.

When a worker is injured outside of work, they are entitled to paid or unpaid personal or carer’s leave and may be able to access income protection insurance if they have taken out cover. They are not entitled to workers’ compensation. Employees who will be absent from work must let their employer know as soon as possible and must also tell them how long they expect to be off work. The employer is entitled to require reasonable evidence of the injury or illness such as a medical certificate or statutory declaration.

An employee cannot be terminated for taking the accumulated paid leave they require to recover from an injury or illness, even if they are away for an extended period of time. Where an employee has run out of leave, and has been away for more than three (3) months, the employer may assess their employment and consider the appropriate action required. This may include termination, as long as it would not be considered harsh, unjust, unreasonable or discrimination based on a disability.  The organisation should look into the employee’s illness or injury and specifically find out how long it is likely to be before the employee will be able to return to work. This may involve holding a meeting with the employee to hear their side and considering the medical opinion of their treating practitioner/s.

If a worker has been off work with a non-work related injury and they intend to return to work, the business may consider managing this return to work as if it were the result of a workers’ compensation claim. There is no obligation for an employer to provide suitable, alternate duties for non-work related injuries or illnesses however there are distinct benefits in doing so. Graduating a worker back into pre-injury/illness duties will assist with the reconditioning and strengthening of the worker and can reduce the risk of placing the worker in a position that may result in a new injury or aggravation of a previous injury or condition.

When a worker is ready to return to work after a serious or prolonged injury or illness it is important to request the worker to provide a medical “clearance certificate” from the worker’s treating practitioner confirming that the worker is fit to return to full and normal duties.

Where the worker is not deemed fit for full duties:

  1. Request the permission of the worker to consult with their medical practitioner/s to enable the development of a suitable duties plan.
  2. Develop a suitable duties plan in consultation with the worker’s supervisor, a rehabilitation and return to work coordinator (if appointed), the injured worker and medical practitioners. Suitable duties plans which are not related to a WorkCover claim do not need to be sent to the workers’ compensation insurer.
  3. Monitor and review the suitable duties plan until the worker is considered fit to return to full duties.

Where a worker is unlikely to return to pre-injury or illness fitness, consider reasonable adjustments to the work or work environment or redeployment to another area of the business which will not place them at risk of aggravation of their condition. Where the worker is permanently unable to carry out the inherent requirements and demands of the position and all other avenues have been exhausted, voluntary resignation or retirement for medical reasons may be considered.

Masula Compliance specialises in occupational rehabilitation, return to work and the preparation of suitable duties programs and can provide direction and advice in this area of work health and safety.