What are the legal risks involved in managing employee injury/illness?

Employees who are ill or injured must be carefully managed throughout the employment life cycle including during recruitment, while employed and if their employment is terminated. During recruitment, the results of a medical examination may require an employer to make reasonable adjustments to enable the prospective employee to perform the inherent requirements of the role.

Authored by the LexisNexis Legal Writer team and updated by Erin Lynch, Partner, Grace Gunn, Senior Associate and Jessica Smith, Lawyer, Gadens.

An introduction to managing employee injury/illness

Employees who are ill or injured must be carefully managed throughout the employment life cycle including during recruitment, while employed and if their employment is terminated.

During recruitment, the results of a medical examination may require an employer to make reasonable adjustments to enable the prospective employee to perform the inherent requirements of the role.

While employed, an illness or injury may trigger various issues, including workers’ compensation (if it is a work-related illness or injury), discrimination issues, obligations and protections under the Fair Work Act 2009 (Cth) (FW Act), privacy issues relating to sensitive health information and contractual rights, such as the ability to direct an employee to attend a medical examination.

Performance management of employees who are ill or injured can be a particularly difficult and sensitive issue in both legal and practical terms — especially if the performance management leads to termination of employment.

This guidance note sets out the key issues that employers commonly face when managing injured or ill employees. However, each scenario must be managed by reference to the particular circumstances of the matter.

Discriminating or taking adverse action against ill or injured workers

Equal opportunity legislation protects employees from discrimination because of a temporary or permanent disability.