Changes to disability discrimination laws, along with the Fair Work Act’s protections, mean that some ‘standard’ practices in managing ill and injured employees create considerable risk for your organisation. The changes have increased the pressure on employers to find accommodating solutions for employees with disabilities, along with greater costs for getting it wrong.
Managing long-term illness and injury is a difficult balancing act among the various laws and entitlements, including paid leave, disability discrimination laws, the Fair Work Act and safety laws.
To date, many organisations have maintained a clear divide between how workers’ compensation claims are managed compared with injuries or illnesses that are unrelated to work. For some organisations this means exclusively providing ‘suitable duties’ to employees who have a compensable injury (as required under state workers compensation laws).
However, if you slipped a disc playing Frisbee on the weekend, suitable or alternative duties may not be provided. In other situations, employees who have been off sick for an illness or injury unrelated to work might be treated by an employer as automatically ineligible for overtime in that week.
Unless carefully thought through and supported by relevant exceptions under law and sound operational reasons, these practices create risk for your organisation.
There is a patchwork of state and federal law in this area. The federal Disability Discrimination Act 1992 (DDA) applies most broadly and sets the higher bar. Employees who are experiencing bad health will almost certainly have a ‘disability’ within the meaning of the DDA and will have rights under that legislation. Since 2009, the DDA requires employers to make ‘reasonable adjustments’ for any employee with a disability — unless that adjustment would cause ‘unjustifiable hardship’ to the employer.
In many situations, ‘reasonable adjustments’ may look quite similar to what an employer might provide under a workers’ compensation return-to-work plan. This means that if an employee is returning from a period of absence and some alteration of their usual tasks may be needed, your organisation needs to consider whether the adjustments can be made so that the employee can meet the inherent requirements of a position. This could include additional breaks, modified tasks for a period, or other changes to the work environment.
Fair Work Act
Under the Fair Work Act’s general protections, disability discrimination is unlawful. ‘Adverse action’ claims give a further protection where an employee has a workplace right and action is taken against the employee because they exercise that right. The previous example of being penalised and excluded from overtime because of sick leave use is a case in point.
In discrimination complaints, general protections applications are growing in popularity because they are quicker to get started than traditional complaints before state and federal EEO bodies and there is a reverse onus on the employer to prove that the alleged action was lawful. In short, you want to be careful about practices which penalise people for taking sick leave or which consider sick leave use in recruitment, redundancy or other employment contexts. You may be exposed otherwise.
Narrowing the gap
Unlike the set requirements of workers’ compensation laws, when it comes to considering the steps you need to take to meet your obligations under the DDA and the Fair Work Act, there is no clearly defined path to take. However, an approach that proactively seeks to return employees to their pre-injury/illness roles along the lines of the steps taken in workers’ compensation claims will mean that the legal risks under the DDA and the Fair Work Act will be far less.
As a starting point, you could consider:
- What are the ‘inherent requirements’ of the person’s job?
- Can the employee perform these requirements safely?
- Do you need to check this with a doctor?
- If the employee will have difficulty in performing the requirements, can you make any adjustments?
If you are on the front foot in trying to reach accommodating solutions for employees who are suffering short or long-term ill health, you will also be demonstrating clearly to the employee and your workforce that their health and wellbeing matters to your organisation. You will also expand your potential workforce as an employer who can get the best person for the job, regardless of any disability they may have.