What if an employee acquires an impairment?

Employees may develop an impairment through an accident or through a degenerative illness. This obviously creates many new challenges for them and also raises issues for their employer. Questions include:

• How will the disabled employee continue to do their job?
• What changes will need to be made and what help will be needed to do this?
• What does the law say?

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Job retention makes good business sense

Taking steps to assist an employee to remain at work or return to work makes good business sense:

• The business retains an experienced, motivated and probably loyal employee.
• The business avoids recruitment, selection, induction and training costs.
• Staff morale may be enhanced as other workers are reassured that they will be looked after if they are injured or develop an impairment.
• Safety standards may increase as a result of improved awareness of disability and health-related work issues and methods.
• Improvements in building access for disabled staff also benefits disabled customers.
• Customer perception is enhanced.

Key points to remember

• The legislation promotes job retention and return to work for injured and disabled workers.
• The Human Rights Act 1993 requires employers to take reasonable steps to accommodate and, if necessary, provide special assistance for disabled employees .
• Assume that an employee who is injured or develops an impairment will retain their job or achieve a full return to work.
• Try not to have hard-and-fast rules about outcomes of cases of disability and injury in the workforce. Each individual case must be considered on the particular circumstances of the individual injury and/or impairment and of the employee, the job and the workplace environment.

Legal requirements

Where an employee is injured at work, an employer must consider their particular circumstances. This consideration is guided by a web of protective legislation that places a number of requirements on the employer. The general intention of the legislation is to ensure injured or disabled employees can, wherever reasonably possible, either keep their jobs or return to work at the earliest opportunity.

Keeping actively involved in the workforce is widely recognised as essential to the financial wellbeing and personal self-esteem of injured or disabled employees. The legislation aims to promote this without imposing unreasonable disruptions on employers or risk of harm to the employee or others.

Key concepts in the law

Accident compensation

An injury may result in an impairment that is short-term, long-term or permanent. The accident compensation legislation (Injury Prevention, Rehabilitation, and Compensation Act 2001) provides certain statutory entitlements to an injured employee. These include:

• Weekly compensation for loss of earnings
• Payment of cost of health treatment
• Rehabilitation measures, including social and vocational rehabilitation.

The Act places a strong emphasis on rehabilitation, particularly in the workplace of the injured or disabled employee. The Accident Compensation Corporation provides a case manager who will usually develop a rehabilitation plan with the employee and their employer. This may involve scheduling a gradual return to work, alteration or reallocation of tasks, and arranging any necessary alterations to the workplace.

Human Rights Act

Where an employee develops an impairment, an employer is required to take reasonable steps to accommodate them. This may involve the provision of special facilities or assistance for that worker.

Employees who are given less favourable terms of employment, conditions of work, opportunities for training, promotion or transfer, or are dismissed because of an impairment may have grounds for action against the employer under the Human Rights Act.

Where do I start - implementing a procedure

The following process will meet the needs of both the disabled employee and the employer:

• Develop a standard procedure for handling and enquiring into cases. While there can be no standard outcome, a well thought-out procedure will enhance the confidence of the managers and workers involved.
• Be aware that procedures that seem similar to those developed for performance reviews, disciplinary meetings or dismissals may make an employee feel anxious that they are about to be "told off" or "sacked". Procedures prepared in advance and advised to staff will help ease such anxiety.
• Explain the process and goals to the disabled employee. Be aware that if a plan for job retention or return to work does not succeed, the procedure will be open to the same scrutiny as any dismissal or termination of employment.
• Involve the employee as much as possible. Make sure they have a good chance to put forward their ideas and concerns. A person who is dealing with their impairment in other parts of their life is likely to have good ideas about dealing with it at work.
• Remember that if they have a new injury or a newly developed impairment they may need extra time and help to sort through and present their ideas.
• Keep a thorough record of discussions and plans for dealing with the situation and make copies available to the employee.

A number of actions may be necessary to enable the disabled person to continue to contribute at work, including:

• Changing the work environment, such as access, lighting, additional or adapted equipment.
• Changing the job by providing light or modified duties or reallocating tasks between employees (accident compensation applies here).
• Providing additional training and support for new tasks or doing old tasks in a new way.

Important information to check

Employment agreement
Look at provisions for sick leave, how it may be used, consultation provisions about changes to jobs, and notice periods.

Accident compensation and rehabilitation legislation
If the injury or disability occurred through work, there are particular requirements. If it is not work-related, the employee nevertheless has entitlements to social and vocational rehabilitation.

Anti-discrimination legislation
The Human Rights Act prohibits termination, non-promotion, changes of job, or lesser conditions of work for disabled employees, unless there is a particular exception.

Employment relations legislation
In addition to the minimum standards of employment, employers and employees are required to be responsive and communicative in all aspects of the employment relationship.

Health and safety legislation
The employer is required to assess health and safety risks for workers, clients and other users of the workplace. This assessment should identify what information, training or procedures may be required.

Privacy legislation
The needs and personal health status of a disabled employee may need to be discussed among a range of people - managers, supervisors, safety and union representatives, other employees, and medical or occupational advisors.

Be aware of the need to balance this involvement with respect for the individual's privacy. The nature and purpose of the information gathered and the use to which it will be put should be discussed with the employee. While some "evaluative material" from supervisors or managers is confidential to the business only, the employee will be entitled to see most other material, including medical reports.