Do employers have to accomodate injuries?
Employers do need to accommodate people that have injuries.
However, a distinction needs to be made between those people that have work related injuries and those who have and those who haven’t lodged a WorkCover claim.
As well as people that have an injury that is not work related.
If the injury is work related
Have you lodged a WorkCover claim?
If you have suffered an injury that is related to your employment, whether it is an injury that occurred in one instance or gradually over time during your employment, you should give consideration to lodging a WorkCover claim.
We understand that a WorkCover claim isn’t for everyone.
There are certainly benefits to a WorkCover claim, but also some downsides.
However, a WorkCover claim can provide a person that has suffered a work related injury with some protections, which will be explained further on.
What protection does a WorkCover claim provide?
If you have an accepted WorkCover claim and your ability to work is impacted by the injury,
you should be seeing your doctor or other health practitioner to obtain certificates of capacity.
You can read about certificates here.
On your certificates of capacity, at the top of the second page there is a section for the person that is certifying you to comment about your work capacity.
They will be required to indicate whether you have no capacity for work, whether you have a capacity for modified duties, or whether you have a capacity for full unrestricted duties.
If you are certified as having no capacity for work, then you should be entitled to the payment of weekly payments.
You can read about weekly payments here.
If you are certified as having a capacity for modified duties, then the person that certified you should provide comment as to what some appropriate work restrictions might be.
So for example, taking into account the nature of your work, an appropriate restriction may be no lifting over 10kg.
Or no lifting above shoulder level.
Your employer has an obligation to provide you with suitable duties, taking into account your restrictions, once you have a WorkCover claim accepted.
This obligation for suitable duties continues for at least 52 weeks.
Beyond 52 weeks, if, from a medical point of view you are not likely to be able to return to your pre-injury role and this isn’t likely to change, it is possible for the employer to terminate your employment.
You can read about this further here.
It’s important to keep in mind however that your employer cannot just terminate your employment after 52 weeks without there being medical material confirming that you’re not likely to be able to return to your pre injury role.
To be more accurate, an employer can terminate your employment without medical material but should they do an employee may succeed in an unfair dismissal application.
If it is not possible for the employer to accommodate you by way of suitable duties because there are no suitable duties that they can give you taking into account your medical restrictions and the work they have available, then you can remain employed with that employer and you are entitled to be paid weekly payments at your full rate.
You are not required to work if there are no suitable duties that the employer can provide to you.
Your work capacity will be continually assessed and if your capacity changes and improves then those involved in facilitating a return to work should look at whether there are any options to integrate you back into the workplace.
If you are being asked to perform work that is not in accordance with your medical restrictions, then you have the right to refuse to perform that work.
We know that in reality this can be difficult to do because people may be afraid that if they do so it may impact their employment.
If this applies to you and you want to avoid rocking the boat, we recommend that you get advice from a lawyer or if you don’t want to speak to a lawyer, contact the insurer and have a chat to them about it and they may be able to assist.
Another option is to speak to the person that certified you and ask them to provide a letter that you can give to your employer addressing the issue.
If you have not lodged a WorkCover claim for a work related injury
Then the employer is not under the same obligation to offer you suitable duties.
They can do so, but there is no obligation on them to do so.
You also will not have the 52 week period of suitable duties as you would have if you have an active WorkCover claim.
However, an employer is still required to provide reasonable adjustments.
This might mean, if you have a knee injury for example, adding some matting to part of your workplace to lessen the impact that standing in that area would have on your injury.
And, just because you don’t have a WorkCover claim does not mean that you don’t have any protections.
An employer cannot simply terminate your employment because you’ve suffered an injury.
In order to terminate your employment, they should still obtain medical material confirming that you’re not likely to be able to perform your pre injury role and that this isn’t likely to change.
If they terminate your employment without appropriate medical material, then you may be successful in an unfair dismissal application, a general protections claim and/or a discrimination claim.
Does an employer have to accommodate a non work related injury?
The answer to this is the same as the paragraph above.
That is, the level to which an employer has to accommodate a non work related injury is much less to when compared to work related injury for which you’ve lodged a WorkCover claim.
They still have to provide reasonable adjustments as referred to above.
And you have the same protections as referred to above in relation to your employment being terminated.
If you have a work related injury that you have lodged and had accepted a WorkCover claim, then the employer is required to accommodate that injury.
If you are subject to medical restrictions, your employer is required to abide by these restrictions and offer you suitable employment.
If no suitable employment is available, then you are not required to work and are entitled to be paid your full WorkCover weekly payment entitlement.
The obligation to provide you with suitable duties runs for a minimum of 52 weeks and after this period, if the employer wishes to terminate your employment then they should have medical material confirming that you’re not likely to be able to return to your pre injury role.
If you have a work related injury that you have not lodged a WorkCover claim for, or an injury that is not work related, the employer does not have to accommodate your injury to the same extent.
However, an employer is still required to make reasonable adjustments and if your employment is terminated because of the injury you still may have protection in the form of Fair Work or discrimination applications.