Pre Employment checks
- Do you carry out pre-employment medicals during the interview process and before an offer of employment is made to ensure that the employee is fit for the role?
- Do you use pre-employment medical questionnaires? If so, are they in line with Irish equality legislation?
Protocols on the day of a workplace absence
- Do you have clear written procedures for reporting absences e.g. employees are to phone before a certain time? Do you clearly state that text messages are not sufficient contact?
- Have these written procedures been communicated to all staff?
- Do you accurately record and monitor all staff absences?
- Have you trained your managers on how to handle absence and on how to use the relevant procedures?
- Would it help your absence rates if you put initiatives in place to encourage good attendance such as bonuses for good attendance?
- Do you have a workplace absence threshold limit that triggers a full review of an employee’s attendance for the year?
- Do you provide opportunities for discussing problems relating to attendance in routine appraisals?
Sick Leave Absences
- Do your employees’ contracts of employment include a consent to refer employees to the company’s occupational health physician?
- Do you request that employees who are absent from work on a long term basis visit the company’s occupational health physician regularly?
- If you are an employer that pays sick pay, do you have a policy in place that reduces sick pay for long-term absent employees e.g. capping sick pay at a certain number of days self-certified and a certain number of days certified by the employee’s GP?
- Do you conduct return-to-work meetings? Suggested tips for conversation at return to work meetings include:
- Address the dates and frequencies of absences
- Address whether notification procedures were followed, query why they were not if they were not
- Discuss whether there is a longer term issue in pay that may prevent a full commitment to work
- Has the company doctor been involved – Provide a copy of the reports to the employee if this has not already been done and discuss the reports
- What, if any, support the company can provide to support the employee to provide a full commitment to work
Tips for a reasonable accommodation discussion
- Has the occupational health physician made observations in relation to the employee’s current fitness to carry out their role and/ or made observations in relation to the types of duties the employee is fit to undertake? Consider involving the employee’s line manager and health and safety manager in this conversation.
- Has the company considered a range of supportive measures to include the provision of special equipment to support employees’ health and well being on their return to work?
- What onward medical support will be required to ensure as full a commitment as possible to the workplace?
Interacting with your occupational health physicians and company doctors
- Do you have clear terms and conditions in place with your company doctors? A taste of issues to be addressed in a terms and conditions document are:
- The format in which doctors are briefed and what format will reports take?
- Who in the company is authorised from a data protection point of view to be the contact point with the doctors?
- How and when cases are referred back to a patient’s own GP
- How are reasonable accommodation recommendations to be made taking into account the specific needs of the business and any proportionate steps that can be taken to accommodate the employee’s issue.
Persistent Short-Term Absenteeism
- In order to justify a dismissal for persistent short-term absenteeism, an employer will generally be required to show a number of things:
- The pattern of absence over an extended time
- Informed commentary on whether the situation will improve
- Was the continuation of that level of absenteeism unacceptable to the employer?
- Why, when and how warnings of the consequences of absence were given to the employee (Verbal and written evidence relevant)
- Is it part of the disciplinary/dismissal procedure that a pattern of frequent short term absenteeism may result in dismissal?
- Are there any disability considerations that should be taken into account before deciding to dismiss?
- Can you demonstrate the steps taken to reasonably accommodate the employee through health and safety accommodation measures or alternative roles (where available)
Managing Long Term Absences
- Has the employee been provided with a contract of employment and all policies and procedures – specifically those relating to absence?
- Has the organisation kept in regular contact with the employee regarding the absence issue? Note: there are occasions when contact is inappropriate – for example, where the company occupational health physician recommends a break in contact.
- Has the employee been medically assessed to ascertain:
- The likelihood of a return work in the short to medium term
- The likelihood of a return to work in the longer term
- Their ability to carry out all of the normal duties of the role
- Whether there is any reasonable accommodation that should be implemented to assist them in returning to work?
- Has the role been assessed by an occupational health professional against the employee’s medical prognosis and ability to carry out the role?
- Are the medical assessment and role assessment recent and up to date?
- Have other specialist medical reports been procured or provided?
- Has the employee been provided with sufficient warning that an inability to return to the role on a full time basis or with reasonable accommodation may result in dismissal?
- Large organisations are expected to take on a higher burden of reasonable accommodation measures for employees.
- Is there a permanent health insurance benefit in place that the employee is entitled to? If there is it may be a breach of contract to dismiss the employee for incapacity.
- Has your occupational health physician consulted with the employee’s medical team? Has agreement been reached between both medical teams regarding the employee’s prognosis?
- Arrange a meeting with both medical teams and employee to discuss options if employee is unfit long term prior to any dismissal for reasons of incapacity being discussed.
Sick certificates that state the illness is due to stress/work-related stress
- Does the certificate give any further details on the cause of the stress?
- Have there been any recent issues within the workplace that may be the cause?
- Is there a grievance policy and has this been communicated to the employee?
- Have you written to the employee expressing the employer’s concern at the certificate and condition?
- Have you advised the employee of the grievance policy and asked them to outline the cause of the stress in the workplace?
- Have you arranged to meet with the employee to discuss any issues raised and to agree how to resolve the matters to facilitate a return to work?
- Have you considered asking the employee to attend the company doctor to confirm the cause of the stress?
- If there is an employee assistance programme in place have these details been forwarded to the employee?
- Is it necessary to carry out an investigation under the company policies depending on the details provided by the employee?
- It is important to be wary of any resignation tendered while an employee is on certified sick leave where the cause of the illness is stated to be work-related stress – the employer is now on notice and must act reasonably to resolve the situation.
- Notify the mater to your insurers if required under your insurance policy.
- Do you have a detailed compassionate leave policy in place?
- Have you set out a maximum period of permitted leave for certain categories of relatives, e.g. 3 days for close family, 1 day for extended family etc?
- Have you provided the details of such leave in your employees’ contracts of employment or the staff handbook?
- Have you considered whether to pay such compassionate leave? If it is unpaid this should be stated clearly in the policy. Note: compassionate leave is not force majeure leave.
- Do you apply your compassionate leave policy reasonably, flexibly and consistently?
Force majeure leave
- The current entitlement to force majeure leave is 3 days in any 12 month period or 5 days in a 36 month period. Employees are entitled to payment on force majeure leave. An employee’s application to any employer for force majeure leave should be made in writing and include the employee’s name, PPS number, name and address of employer, dates of force majeure leave and reasons why and the employee’s relationship to the person who was injured or ill. A medical certificate may also be a requirement in a contract of employment. An employer must keep a record of the force majeure leave.
- An employee may be entitled to immediate paid leave due to a “force majeure” – where there is a sudden illness or injury affecting a member of an employee’s immediate family. The connection to the person for whom the leave is availed of is narrow. Qualifying persons include a child/adoptive child of the employee, a person to whom the employee is in loco parentis or persons in a relationship of domestic dependency. Force majeure leave arises where the employee’s presence in respect of a qualifying close person is indispensable. Force majeure leave does not give any entitlement to leave following the death of a close family member.
- Check the references to force majeure leave in contracts and policies. Does your policy clearly state that childcare issues, parent/teacher meetings and school closures do not fall under the heading of force majeure leave?
- Do you have a form that must be completed by an employee on return from force majeure leave whereby the state the reason for the absence and why their presence was required?
- Does your policy clearly state that any abuse of force majeure leave will be treated in accordance with the disciplinary policy?
- Do you monitor the reasons given for force majeure leave to ensure there is no confusion or abuse of the leave?
For further information on any issue raised in this article please contact the team at Crowley Solicitors
This article is a general summary of the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.