Navigating Long-Term Sick Leave: A Guide to Exiting Employees with Extreme Care

Managing employee absences is a crucial aspect of running any business - as we know, every employee will be absent from work at some point.  However, when an employee's absence extends for a long period due to illness, it can become a debilitating and financially burdensome issue for businesses, particularly smaller ones. While most business owners aspire to do the right thing by their team members, the practicalities of long-term absence can pose significant challenges.

Employee Protections and Employer Responsibilities

It is vital for businesses to understand that employees on long-term sick leave are afforded significant protections in Australia; they are protected under the Fair Work Act and also anti-discrimination laws. An employee can make a general protections claim if the absence is temporary or the injury happened at work. The Fair Work Act also offers protection for employees on long-term sick leave, even after exhausting their paid leave. These legal safeguards necessitate extreme care and a thorough understanding of relevant legislation when managing such situations.

Employers have several key responsibilities regarding sick leave, which extend to long-term absences: 

• Providing paid leave: Full-time employees are entitled to 10 days of paid sick and carer's leave per year, otherwise known as personal leave, accruing progressively and carrying over to future years if unused. Part-time employees receive a pro-rata amount. Casual employees are generally not entitled to paid sick leave under the National Employment Standards.
• Record keeping: It is crucial to maintain meticulous records of employee leave entitlements, usage, and carry-over balances, with the Fair Work Ombudsman recommending a minimum record-keeping period of seven years.
• Confidentiality: Employee medical information must be kept confidential and only disclosed to those with a legitimate need to know.

Managing Long-Term Absences: Essential Steps

To effectively manage long-term absences and protect your business, your employees and your team members on leave, several critical steps are advised:

1. Understand the Reason and Duration of the Absence: It's important to always try to understand the reason for the absence, reasons are often not obvious and can include physical ill health (chronic illness, poor sleep), mental ill health (depressive disorders, high stress), organisational factors (leadership style, job demands), psychosocial factors (work enjoyment, emotional dissonance), or other factors like caring responsibilities. When raising concerns, ask open-ended questions in a respectful and empathetic way, while remembering to respect people’s privacy.
2. Ensure Adherence to Policy and Evidence Requirements: Make sure the employee is adhering to the notification and evidence required for their absences. Employees should notify their employer as soon as possible of their absence, ideally before they are expected at work. While a self-declaration may suffice for short absences, a medical certificate is appropriate for longer ones. Your workplace policy should clearly outline specific expectations regarding notice and evidence. Employers can also request evidence of personal illness or injury.
3. Work Out Support and Maintain Communication: Great managers support their team members whether they are away or still working. Research indicates that employees who feel their managers are invested in them as people are more likely to be engaged.
4. Support for work participation: Often, with the right support, an individual can manage an illness or injury and still perform their work. This could involve encouraging work from home while an illness or issue is managed.
5. Reasonable Adjustments: The Fair Work Act insists that employers consider reasonable adjustments to assist employees with long-term illnesses in returning to work. This might include modified duties, flexible work hours or accessible workstations. 
6. Return-to-Work Plans: For those on extended sick leave, consider implementing return-to-work plans that allow for a gradual return to full duties, ensuring the employee is fully recovered.
7. Explore Leave Options: Beyond paid sick leave, other options may include unpaid leave, personal leave, or long service leave (if applicable).
8. External Support: Connecting the employee with relevant support services, such as employee assistance programs (EAPs) or government assistance programs can be of benefit. 
9. Address Workplace Causes and Manage Team Impact: If an absence is linked to workplace issues such as work demands or conflict, it’s important to address these hazards straight away. 
10. Seek Expert Guidance: For longer absences, consider taking an active case management approach involving HR and treating practitioners. If you are unsure how to best support someone, contact your manager support service, HR or speak with your manager.

Exiting Employees on Long-Term Sick Leave

Considering the exit of an employee on long-term sick leave requires an incredibly sensitive and legally compliant approach. 

• Can you terminate an ill or injured employee? The Fair Work Act offers protection against unfair dismissal and during genuine illness; dismissal is usually unfair unless there are exceptional circumstances.  Employees are protected from being dismissed for taking sick leave, provided they offer evidence and have been on paid sick leave for less than three consecutive months or still have paid sick leave available.  If an employee's long-term illness significantly impacts their ability to fulfil their job duties, employers are entitled to consider whether the employee can meet the essential requirements of the role. However, this should be done with sensitivity and in consultation with HR and medical professionals.
• For complex situations involving long-term illness and potential termination, consulting with an Employee Expert is essential. They can advise on your obligations and ensure fair treatment of the employee.

In essence, while the thought of an employee on prolonged leave can be challenging, a supportive approach to long-term illness fosters employee loyalty and can lead to a smoother return to work. It is crucial to balance employee wellbeing with the need to maintain business continuity and making every effort to facilitate an employee's return to work should be the first priority .

A healthy workforce is a productive workforce. By fostering a culture that encourages employees to take sick leave when necessary without fear of reprisal, and by proactively managing long-term absences with compassion and legal diligence, businesses can protect themselves while valuing their most important asset: their people. If you require specific assistance to ‘manage a long term absence case’ or navigate complex employee relations matters, specialised support is available