Employees who are unable to attend work for significant periods of time due to injury or illness can sometimes be a problem for employers.

Ideally, you want your employee to recover and get back to work as quickly as possible. But before you make a decision to return them to work, you will need to carefully assess exactly what they will be capable of doing before they return.

This decision should only be made after consulting with senior management, the worker and a professional medical practitioner.

Is the employee still fit for their pre-injury duties?

After receiving advice from a medical professional, if it is determined that the employee won’t be able to carry out their pre-injury duties for the foreseeable future, you will need to decide whether:

• you can offer the employee ongoing employment in a modified role to accommodate their condition; or
• you need to terminate their employment.

If you and the worker agree to the modified duties, a new employment contract can be drawn up.

In this new contract, you can set out a goal that you and the worker have agreed on to ensure there is a clear expectation they will return to their pre-injury duties.

Be mindful that if a worker continues on modified duties for a prolonged period with no plan to return to their pre-injury duties, they may be able to argue that they have been permanently appointed to a new role.

If this happens, the employee’s old employment contract will be effectively terminated and replaced with a new one, which means that you would be unable to dismiss the worker on the basis that they are permanently unable to return to their original position, as they have been appointed a new role.

What you must do before dismissing an ill or injured worker

Employers are generally prohibited from dismissing an employee because of incapacity due to illness or injury. However, in some circumstances, you may be able to legally dismiss an employee who is ill or injured.

Before you terminate an ill or injured worker you will need to:

• Obtain sound medical evidence regarding the worker’s incapacity.
• Determine, and be able to prove, that the worker is unable to perform the job they were employed to perform.
• Determine, and be able to prove, that there is no reasonable measure you can take to accommodate the worker’s injury or illness.
• Ensure you have not created an expectation that you will provide the worker with modified duties on an ongoing basis.
• Give the worker an opportunity to respond to the allegation that they are unfit for their duties and to the intention to terminate their employment.
• Consider the worker’s length of service, employment history and the impact of dismissal on them.
• Check that you have no obligation to provide suitable employment under the workers’ compensation legislation in your jurisdiction.