Can an injured worker return to work if they are certified unfit

Making the decision

Under the Accident Compensation Act 1985 (the Act) a worker needs to get a medical certificate or certificate of capacity if they are seeking to be paid loss of income compensation (weekly payments) due to a work-related injury.

Some workers may not be claiming weekly payments, but they still don't have a full capacity for work, and as such require alternative duties or hours, e.g. they are not losing any income but cannot return to their full pre-injury role and use certificates of capacity to advise their employer of this.

As an employer, you are obliged to take into account relevant information about a worker's capacity when planning their return to work.

In both of these scenarios the employer would need to take into account all relevant information, such as:

• the nature of the worker's injury or illness
• the details of the worker's incapacity for work and what they are able to do
• when the worker is likely to return to work and/or how long it will be before the worker can return to their pre-injury duties
• any other factors that may have an impact on the worker's capacity (e.g. to travel, effects of medication, etc.)
• The type and frequency of assistance or support required (e.g. physiotherapy, etc.)

The employer should consult with their worker and the treating health practitioner about the worker's work capacity.

If your worker is seeking to return to full pre-injury work, then getting a certificate or document from the worker's treating health practitioner confirming they have a full work capacity is not mandatory under the Act but is good practice, and will ensure you have a record of the treating health practitioner's advice to the patient.

For a GP to give a patient clearance to return to full pre-injury work they will normally require confidence that the patient's employer will provide the appropriate support on their return to work.

You should therefore continue to monitor your worker's return to work carefully, as required, to ensure they are:

• coping with any return to work
• being provided with a working environment that, so far as is reasonably practicable, is safe and without risks to health in line with the Occupational Health and Safety Act 2004.

Employers must bear in mind that employer/employee relationships are, in addition to the Act, also governed by industrial laws, equal opportunity/anti-discrimination laws and occupational health and safety laws etc.

This means that what might be a legitimate action/omission under one law might not be under another and employers must be conscious of this.

We would recommend that you discuss the individual circumstances of any case with your WorkSafe agent and consider independent legal advice if you remain unsure about what to do next.