Medical Terminations - when is enough, enough?
Unfortunately there comes a time when an employee may become medically unable to do their job. I have had a series of clients come to me and ask "When is enough, enough? When can we dismiss for medical inability?" This is a very good question. For most small organisations it becomes very difficult to keep a job open from day to day for more than a couple of months. But it is very much circumstantial as to when it is OK to dismiss. My general guidance is - if you have been trying all you can to get the person back to work and there remains no assurance that they can, you have probably reached that point. When you come to terminating employment, though, there are a number of things you will need to have completed and at termination there must still be a clear inability to do the job for the next 4 weeks or so – which represents the length of time it may take you to find and train a replacement.
So what are these things? You must bear in mind that we are talking about either a prolonged absence (after sick leave has been exhausted, or on ACC) or a steady deterioration in ability (physical or mental). And yet, because you are not allowed to discriminate on the grounds of disability (under both Human Rights and Employment Relations Acts) except if it creates a health/safety risk, you have to focus on treating everyone the same way and therefore you focus on their ability to actually do certain tasks.
This means you must consult with the employee and their medical advisor, both generically, where there are questions about their ability to return to work, and if they assure you the employee is able to return, then specifically you are focused on the ability to do certain tasks - the same in a steady physical deterioration. There may be a need to design tests in a safe environment to see if they are able; or it may be a question of getting their own medical advisor to sign them off. But this does have to happen within a reasonable time period. And this is where an early start to Return to Work Plans is essential (see previous article – Getting people Back to Work).
Be assured if you don't have a Return to Work plan then you can get medical certificate after medical certificate and after 6 months you may be no closer to termination. You still have to start with a Return to Work Plan - the only problem is that you have demonstrated an ability to be without the employee for 6 months which can make it difficult now to claim you can't!