PH SOLICITOR DECEMBER NEWSLETTER
Navigating the process for an injured worker to return to work can be a difficult task for employers. Approaching the process with care and attention can not only help to ensure a smooth transition back to work for the employee, it can also help to ensure productivity in the workplace, help to ensure WorkCover premiums do not rise, and importantly can help employers to protect themselves from legal claims which may arise for failing to adhere to applicable workplace laws.
Employers who breach their return to work obligations risk a WorkSafe workplace investigation, prosecution and significant financial penalties to both individuals and corporations for any breaches of return to work obligations.
As an employer, what legal responsibilities do I have if my employees get injured at work?
In Victoria, employers have certain legal responsibilities under the Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013 if an employee is injured at work. All Australian states have similar laws relating to injuries occurring at work and the obligations that employers have in such circumstances.
Injured employees are only required to return to work when they are well enough to do so and they are entitled to access an occupational rehabilitation program, if required.
When a person takes time off work after having been injured at work, employers must (amongst other things):
- hold the injured person’s position open for 12 months;
- help a worker return to their job within 12 months of an injury (if they are capable of doing so);
- help a worker to return to different or modified duties within 12 months of an injury (if they are fit for work but not able to perform their previous duties);
- consider workplace support aids or modifications to assist an employee’s return to work; and
- nominate a return-to-work coordinator with the ability to assist the employee to prepare to return to work.
In addition to obligations under the legislation above, employers also ought to be aware of other State and Commonwealth laws that apply to their business and employees, including occupational health and safety, anti-discrimination, plus privacy legislation.
What do employers have to do when a worker returns to work after an injury?
When an injured worker returns to work, employers must make sure that they are given appropriate duties and assistance while they continue to recover from the injury or illness. This might include making reasonable adjustments to the workplace. Some adjustments that an employer may need to make to the workplace include:
- reviewing and, if necessary, adjusting the performance requirements of the job;
- arranging flexibility in work hours;
- providing telephone typewriter (TTY) phone access for employees with hearing or speech impairments;
- purchasing screen reading software for employees with a vision impairment;
- approving more regular breaks for people with chronic pain or fatigue; or
- buying desks with adjustable heights for people using a wheelchair.
What are unreasonable adjustments?
In some cases, an employer can lawfully decide not to make requested adjustments to the workplace.
This can occur when:
- the adjustments needed are not in fact reasonable (with reference to the relevant circumstances); or
- the person with the disability or injury could not perform the genuine and reasonable requirements of the job even if the adjustments were made.
When thinking about reasonable adjustments employers need to weigh up the need for change with the expense or effort involved in making it. If making the adjustment means a very high cost or great disruption to the workplace, it is less likely to be a reasonable adjustment.
Under the Disability Discrimination Act 1992, an adjustment made to accommodate an employee with a disability is considered reasonable unless it causes “unjustifiable hardship” to the employer or organisation.
What are alternative and suitable duties?
Reasonable adjustments do not require employers to change the inherent requirements of the position of the employee returning to work, or provide a permanent alternative duties position or create an alternative duties position when one does not exist.
Alternative duties may include, for example:
- Administrative/Seated Duties;
- No Lifting Required Duties;
- Lifting Less than 5kg Duties;
- No Bending or Twisting Duties; or
- Driving/Operating Machinery Duties.
What can be done at a practical level to help with a return to work?
Employers are advised to consult directly with the injured worker about their return to the workplace. It is recommended that this be done in conjunction with the employee’s treating medical practitioner (where consent has been obtained from the employee) along with any occupational rehabilitation provider who is engaged to assist in the return to work process.
Employers also ought to consult with other employees about assisting with the return to work process where required and should also make it known to all employees what it will do to support them if they ever become injured at work.
Employers also ought to have a designated Return to Work Coordinator who is best placed to assist the company adhere to its obligations in relation to injured workers returning to the workplace.
How can Paul Horvath Solicitor help your business?
With significant penalties facing employers for failing to adhere to return to work obligations, it is paramount that employers get it right when faced with an injured worker returning to work. With over 15 years of experience, Paul Horvath Solicitor is excellently positioned to assist you navigate the process of having an employee return to work after an injury. Let us help you today and assist you with meeting your legal obligations.
Contact Paul Horvath or Ned Puddy at admin@phsolicitor.com.au, or give us a call on (03) 9642 0435 to book an appointment today.
Disclaimer: This article contains information of a general nature and should not be relied upon or taken to be legal advice. You should speak with a lawyer about your situation before applying any of this information.
