Constant communication: The key to managing medical incapacity at work

Constant communication is the key to avoid legal pitfalls when faced with cases of medical incapacity in the workplace, according to an employment law expert.

Medical incapacity is when an employee is unable to do their job due to illness or injury, which can lead to them being away from the workplace for an extended period of time.

Fiona McMillan, a partner at Lane Neave, said cases like these can make workforce planning difficult for organisations. They can also lead to employment disputes when organisations aren't able to manage cases of medical incapacity properly.

"Often employers wait too long, and so then it can be hard to justify why an employer can't hold the person's role open any longer," she said. "Sometimes employers don't deal with things, I think probably promptly enough."

But there can also be situations when employers and employees disagree over the length of how long organisations can hold open a role for someone with medical incapacity.

Employment NZ said employers are "not required by law to hold jobs open indefinitely for employees who are unable to carry out their duties." However, the question is how long an employer should keep the role open for the employee to return to.

According to McMillan, there are "no hard and fast rules" about what's too long and too short when waiting for employees who are under medical incapacity.

"But if an employee is away from the workplace for a year, it does make it really challenging for the employer to then be able to explain why they can't hold their role open for another year," she said.

Navigating medical incapacity cases

As organisations navigate the challenges of medical incapacity, McMillan encourages employers to consider reasonable accommodations and adjustments.

"Termination has always got to be the last possible option for the employer," McMillan said.

Employers should also explore alternatives, such as modified duties or part-time work arrangements.

"An employer must be seen to be considering those things. It has to be fair," she said.

Supporting employees returning from medical leave is another critical component of the process. McMillan believes any return-to-work plan must benefit both parties involved.

"My view is any kind of return-to-work plan has to be beneficial for both parties for it to work," she said.

There should also be constant review periods in order to check if an employee is struggling to adjust to their return to the workplace.

"For the return-to-work plan to truly work, it needs to be beneficial for both parties and you need constant review periods," McMillan said.

Importance of constant communication

To ultimately prevent falling for legal pitfalls, McMillan stressed the importance of constant communication with the employee under medical incapacity.

"The key is constant communication and understanding where the employee's recovery is at," she said.

McMillan recounted that an issue she usually sees in her employer clients is when they're unable to remain in touch with the affected staff.

"I don't think you can leave these things for months on end and then try and pick up the process. I think it makes it really challenging," she said.

Employment NZ offered a similar suggestion, where employers need to understand how long the employee is likely to be off work and whether they'll be able to do their job again.

"Employers should make sure that any investigation into understanding the medical situation for their employee is not viewed as a disciplinary investigation - the employee has not done anything wrong," it said.