Jo Douglas has advice for business owners managing medical incapacity in the workplace. What does a fair and reasonable approach look like?
A productive workplace starts with staff who are reliably attending work and are engaged when they get there. When staff are habitually absent from work, a small business can be immediately impacted. Absorbing the workload and covering the gap can quickly become a real issue.
It is important when faced with an employee who either takes a lot of intermittent leave at short notice, takes unauthorised absence, or takes long periods of sick leave that you have in place a strategy and framework for responding.
Employers are often equipped to deal with disciplinary issues, and the temptation is to approach absence from work in the same way. In many cases this will be a mistake. The reason being that where the reason for intermittent or long-term leave is a medical issue, the employee will not be at fault and a punitive response is not appropriate.
Approaching the situation with sensitivity and compassion is the first step to tackling absence issues. Attempt to understand exactly what is going on for your employee.
The second step is making it clear to the employee your expectations about attendance and what is required in situations of unplanned absence – for example, proper notification and how it should happen.
The reasons for unplanned absence from work can be varied. An employee may be experiencing issues in their personal life that are impacting upon their attendance; they may have an ongoing medical condition; or they may have dependents who require regular care and time away from work.
Before making any decisions, it is important that you understand what is happening and how long it might continue for.
Employees may choose not to share personal information with you – that is their right. However, employees should be made aware that their absence is impacting on work and encouraged to help you to understand the situation. This means that you can make a better and informed decision, if necessary, about their ongoing employment.
Often it seems a difficult step to formalise this conversation. However, by preparing for this conversation properly and setting out what you expect in writing, many employees will be able to understand the situation and prepare themselves better. It allows them the opportunity to potentially talk to their support people, and to consider how they will respond to the issue.
How to manage medical incapacity
The principles of what a fair and reasonable employer managing medical incapacity in the workplace should do has been articulated by the Employment Court as follows:
• Allow an employee reasonable time to recover from a sickness or injury.
• Undertake a fair and reasonable inquiry into the prognosis for a return to work, by engaging with the employee, seeking and considering relevant medical information.
• Have regard to the terms of the employee’s employment agreement and the employer’s policies.
• Inform the employee of the reason for the inquiry, any possible outcomes (including possible termination of employment) and give the employee an opportunity for input.
• Fairly consider the employee’s feedback and comments before making a decision to terminate their employment.
Medical incapacity is often perceived to be a tricky process for employers to manage. That is because it involves the intersection of private matters with work and business affairs.
Employers should remember, first and foremost, to approach the situation with empathy while setting expectations as to what is required for the business to operate smoothly and productively.
