This unprecedented, not-normal COVID-19 environment that we are experiencing has given me a little bit of time to think. It got me thinking about a lot of things, but in particular what happens to existing claims and how do we continue to plan for an injured worker’s return to work when a) they are required to work from home or b) there is no work. I also wondered how do injured workers and employers continue to meet their obligations when in social isolation. This is not an easy time for anyone so I hope I can make things a little easier for you by answering just some of the questions you may have around COVID-19 and return to work.
Do my Return to Work obligations still exist due to the COVID-19 restrictions?
Yes, all parties RTW obligations (those within sections 103-109 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act) remain in place. However, these obligations are ‘to the extent reasonable’ and each individual claim would need to be reviewed to determine what is reasonable in that situation.
Do I need to offer my Injured Worker home-based duties?
As the WIRC Act states that RTW obligations are ‘to the extent reasonable’ each case would need to be reviewed on an individual basis to determine what is reasonable in that circumstance. One thing to bear in mind is to ensure you are not discriminating against an injured worker. Injured Workers must be offered the same options as their colleagues.
If, however an injured worker on a current RTW plan requests to work from home because of concerns they have about COVID-19 when other staff members are not working from home, the employer must consult with the worker and take their views into account (as is required in section 105 of the WIRC Act). This request may be reasonable and able to be accommodated in some cases and not in others. Again, it must be assessed on an individual basis.
Do I need to identify suitable duties if I am unsure whether my business will keep operating?
The answer here is yes. As an employer you would need to ensure you continue to adhere to your RTW obligations, including consulting with the injured worker and providing them with clear, current and accurate details of their RTW arrangements, as per the WIRC Act (2013). Your obligations remain in place until such time as your business ceases to operate. In some cases, WorkSafe may request evidence from you to confirm the cessation of your business.
How do I supervise and monitor an injured worker who is working from home?
In the same way you are supervising your other staff working from home. You could do this by having regular telephone consultations with your injured worker or arranging regular meetings to monitor their progress.
Do I need to continue to plan an Injured Worker’s RTW if they are required to self-isolate?
Again, the answer is yes. As an employer you have an obligation to continue to plan for your injured workers RTW, to the extent that it is reasonable to do so. One way to ensure you remain in line with your obligations under the WIRC Act (2013) is to consult with your injured worker via telephone. You can discuss and assess possible duties and propose the options of such suitable employment to be completed from your injured worker’s home. However, if your worker is unwell due to contracting COVID-19 they must consult with you, which should result in them utilising their existing sick leave (unless they have an accepted WorkCover for COVID19).
How does my injured worker update their Certificate of Capacity or see their health professional?
From 20 March 2020 WorkSafe Victoria introduced temporary arrangements which allow injured workers to access their health care professional via telehealth services, including telephone and video link up. Injured workers can use telehealth in place of face-to-face consultations to access their GP, Physiotherapist, Occupational Therapist, Osteopath, Chiropractor, Exercise Therapist, Psychologist and accredited mental health social workers for treatment advice and to obtain a valid certificate of capacity. Please note that prior approval must be obtained from your Worksafe Agent prior to utilising this service.
If an injured worker is scheduled to attend a face-to-face consult with an Independent Medical Examiner and they or the Medical Examiner is unwell or experiencing flu like symptoms it is imperative they follow the advice from the Department of Health and Human Services.
*information obtained from www.worksafe.vic.gov.au