“Hey boss I’ve got another medical certificate, looks like I’ll be off for another month” – Medical incapacity, how long is too long?

People get sick and people get injured – there is no avoiding that fact of life. That is why New Zealand has sick leave provisions, ACC weekly compensation payments and insurance options to help support good employees through their absence from the workplace as they walk the road to recovery - however long it may be.

But where does that leave the employer? Perhaps you run a production line of five staff and you simply can’t operate without a full team?

·      You bring in a casual employee! But for how long? If the medical issue rolls into weeks, care must be taken to ensure that casual employee doesn’t work ongoing regular rostered days or hours, or they may inadvertently inherit the entitlements of a full-time permanent employee.

·       Hire someone on a fixed term agreement! That’s a great idea! But again, for how long? Contacting an employee on leave for an extended medical absence and asking questions around timeframe and recovery is a process that must be handled delicately, or you may easily be accused of applying pressure and causing distress.

More challenging still, not every situation involves a long-term, trusted employee, and in some cases the employer has limited history or context to rely on when assessing the situation.

Medical incapacity is a minefield for employers and unfortunately conversations around the management of this issue are arising more and more frequently from our clients. Employers are well poised to determine who is worth waiting for and who is not. If you have a diligent, trusted, long-term, hardworking and loyal employee – you will explore solutions, find contingencies and potentially wait as long as it takes. You will work hard as an employer to reflect the trust and loyalty you have received back to that employee. But not every employee fits that description and sometimes it isn’t economically viable to hold a role open while waiting weeks, months and years.

What to do? The Process

For the sake of this article, lets set aside the conversation around whether or not an employee should be dismissed for medical incapacity, because every situation is different and nuanced, and many cases are resolved purely through good intention and even better communication. Instead, lets focus on the process of managing a worst-case scenario:

·        An employee becomes unwell or injured, at work or at home, and provides a medical certificate confirming they’re unfit for work.

·       The employee is absent for an extended period (for example, one month). During this time, the employer stays in touch and supports the employee’s                   recovery.

·        A further medical certificate arrives extending the absence for another period. At this point, it is reasonable for an employer to start thinking about the               longer-term impact on the business.

·       The employer writes to the employee explaining their concerns and requests permission to seek more detailed medical information about recovery and             return-to-work prospects. A consent form is provided.

·        If the employee doesn’t consent, the employer should offer reasonable alternatives, such as the employee obtaining a more detailed medical update                  themselves or attending an independent medical assessment.

·        Any medical information received should focus on practical questions:
- When are they likely to return?
- Can they perform their role, now or in the foreseeable future?
- Are there restrictions or adjustments that could help?

·        The employer then considers whether the ongoing absence and the uncertainty around it, are manageable for the business.

·        If concerns remain, the employer invites the employee to a meeting to discuss the situation formally (48hrs notice, the right to a support person and no             pre-determined outcome etc) clearly explaining that continued employment is at risk and giving the employee a chance to respond.

·        If the employee engages, their feedback must be genuinely considered before any decision is made.

·        If the employee doesn’t engage or attend without good reason, the employer may need to make a decision based on the information available.

·        If continued employment is no longer workable, employment may be ended on medical incapacity grounds, provided the process and decision are both           fair and reasonable.

This can be a challenging and emotional time for everyone involved, fraught with risk and high potential to result in a personal grievance being raised against the employer. Medical incapacity is an unfortunate reality and one that must be approached always with sensitivity and empathy first, but regardless of the outcome, SBS can be your partner through the process.