8 October 2021
As discussed in a previous Snapshot, when employees are absent from work due to injury or illness, it can also significantly impact business operations. Following an employee’s prolonged absence, the next challenge is to ensure a successful transition back to work. This Safety Snapshot highlights the key considerations for employers in balancing their legal duties, operational considerations and employee safety when transitioning a long term absent employee back to work.
Legal considerations
Employers have obligations under the Occupational Safety and Health Ordinance (OSHO) to ensure the safety of employees and others in the workplace. This corresponds with an employer’s common law duties to take reasonable care of employees’ safety and to provide a safe place of work. Where an employee is returning to work from an illness or injury, particular care is needed to ensure their working arrangements do not aggravate their illness or injury.
Additionally, employees with an illness or injury will benefit from protections under the Disability Discrimination Ordinance (DDO). In most cases, it will be unlawful for an employer to terminate the employment of an employee because of his/her illness or injury. Only where the employer can demonstrate that the employee is unable to carry out the “inherent requirements” of the particular job or, to carry out those requirements, the employee would require more than just reasonable accommodations, may termination of employment be appropriate. Demonstrating that an employee cannot perform the “inherent requirement” of the role can be difficult. For example, the fact that a returning employee may not be able to carry out his/her job as efficiently as before his absence will not be sufficient. Instead, to first ascertain the “inherent requirements” of a role, the employer must consider factors such as the employee’s training, qualifications, experience and performance. Then, as highlighted in our previous Snapshot, it is generally necessary for the employer to obtain a clear, current and reliable medical opinion on any limits to the employee’s capacity to perform the requirements of their role, in light of their medical condition.
Similarly, in determining what are “reasonable accommodations”, all relevant circumstances must be taken into account, including the nature of the employee’s disability (as per the medical opinion), the benefit or detriment from providing or not providing the accommodations, and the cost of such accommodations. Examples of what might be a reasonable accommodation could include:
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reassigning the employee to an alternative position;
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enhancing accessibility to the workplace or providing additional equipment to facilitate the completion of work tasks;
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adopting flexible work schedules, including to enable an employee to attend medical appointments; and
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providing training and counselling to facilitate the return-to-work process.
Return to work obligations for employees
Despite the above legal considerations, the Employees’ Compensation Ordinance (ECO) does not mandate employers to provide vocational rehabilitation to assist employees’ return to work. However, from a practical perspective, ensuring a smooth return-to-work process will be essential to not only fulfil legal obligations, but also to support employees, to retain talent and to minimise disruption to the business.
Employees will generally be legally required to cooperate with safety directions or directions around how they perform their work, provided that such directions are lawful and reasonable. Where a variation of the employment terms is proposed, for instance, reduced working hours for a finite period or on an ongoing basis, this would need to be agreed between the employer and employee.
Going forward employers may consider encouraging returning employees to participate in the Voluntary Rehabilitation Programme or the Pilot Rehabilitation Programme (Pilot Programme), which the government expects to launch in 2022. While the first phase of the Pilot Programme is focused on the construction industry, the government has indicated it will extend it to other industries once the Programme has proven to be effective. Similar to the current Voluntary Rehabilitation Programme run by the Labour Department and the insurance industry, the Pilot Programme aims at providing rehabilitation services for the employee’s speedy recovery and early return to work. It is proposed that the Pilot Programme will be administered by the Occupational Safety and Health Council (OSHC) following the passing of the Occupational Safety and Health Council (Amendment) Bill and will include:
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private out-patient rehabilitation treatment services relevant to the employee’s specific injury;
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a dedicated case manager to ensure compliance with the rehabilitation plan, provide necessary psychological and emotional support, and work with employers on the return-to-work arrangement; and
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direct accountability between medical professionals to the Labour Department and OSHC.
Key takeaways
To facilitate a successful return to work, employers may consider:
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Maintaining communications during the absence: Maintaining contact can help employees stay connected and engaged. Employees may feel frustrated when suffering from illness or injury that prevents them from working so regular contact can assist in maintaining an employee’s confidence in their skills and knowledge as well as keeping them updated of any changes occurring in the employer’s business.
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Prepare a return-to-work plan: Taking time to prepare for the return-to-work can assist in avoiding a rocky return. Employers are advised to:
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seek medical advice or obtain medical clearance to understand an employee’s condition;
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communicate the return-to-work process with the employee early and discuss with them any concerns;
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make clear that the plan may need to be varied depending on their fitness and operational matters, but the goal remains assisting their return to the pre-injury / illness role;
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consider adjustments and modifications to the role, on a short term or long term basis; and
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ensure resources and facilities are in place to support the return-to-work plan.
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Support employees on an ongoing basis: Upon their return, it is critical to provide employees with ongoing support and to work with employees to monitor and review their health and work capacity. This will allow employers to ensure appropriate support is provided and, where necessary, take early action to address any issues that arise or to vary adjustments as needed.
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Remain consistent in operating return to work plans: Lastly, ensuring a consistent approach to returning employees will assist employees to feel assured and will reduce the risk of discriminatory treatment.
For further information, please contact:
Tess Lumsdaine, Partner, Herbert Smith Freehills
Tess.Lumsdaine@hsf.com
