Employer’s legal obligations during return to work

What you are required to do under Victorian law when helping an employee return to work.

Date last updated

Tuesday 08 Jun 2021

Industries and topics
  • Return to work

Your legal obligations

When one of your workers has an incapacity for work, you have obligations under the law to help them return to work.

Your obligations

1. Plan for your worker’s return to work

  • Obtain relevant information about their capacity for work.
  • Consider reasonable workplace support, aids or modifications to assist in your worker's return to work.
  • Assess and proposing options for suitable or pre-injury employment to your worker.
  • Provide your worker with clear, accurate and current details of their return to work arrangements.

2. Monitor your worker's progress

  • Consult with your worker
  • Consult directly with your worker about their return to work
  • Consult with the treating health practitioner if your worker gives their consent
  • Consult with the occupational rehabilitation provider if there is one.

3. Provide suitable employment

  • Provide your injured worker with suitable employment if they have an incapacity for work, for a 52 week period following the injury
  • Provide your worker with pre-injury employment or equivalent when they have returned to full capacity.

4. Appoint a return to work coordinator

  • You must appoint a return to work coordinator who has an appropriate level of seniority and is competent to assist you meet your return to work obligations
  • Make information available to all your employees.

5. Provide a safe work environment

Employers have obligations under Victorian occupational health and safety (OHS) legislation, including to provide a safe work environment. Employers need to consider their obligations under OHS legislation when planning a worker's return to work.

6. Keep worker’s information private and confidential

Victoria's workers compensation legislation, information privacy legislation and health records legislation regulate the exchange of personal and health information. Employers should be familiar with these requirements as, in the course of managing a worker's return to work, employers will have access to confidential information about a worker.

7. Avoid discriminatory conduct

The legislation prohibits an employer or prospective employer from engaging in the following discriminatory conduct relating to a worker pursuing a claim for compensation or for notifying an employer or WorkSafe of an injury under this legislation:

  • Dismissing, or threatening to dismiss, a worker from employment
  • Altering, or threatening to alter, the position of a worker to the worker's detriment
  • Treating a worker less favourably than another worker in relation to promotion or re-employment.

Is your worker from a labour hire company?

If you’re a host employer, you’ll need to cooperate with the labour hire employer's efforts to meet their return to work obligations and facilitate the worker's return to work.

If a worker’s injury arises during the course of labour hire employment, there are specific obligations for both labour hire agencies and host employers. 

Refer to the labour hire and return to work fact sheet and Compliance Code 4 of 4: Cooperating with labour hire employers about return to work.

Other obligations

There are also other State and Commonwealth discrimination laws that require employers to make reasonable adjustments to hours, equipment and conditions to accommodate a worker's injury or illness regardless of its cause, nature or permanency.

These laws apply to all workers, whether full-time, part-time, temporary, permanent or casual. It may be unlawful discrimination to treat any worker less favourably at work because of their illness or injury, or allow them to be treated less favourably by others.

In addition, employers need to comply with labour laws, industrial awards and agreements under which their employment arrangements are regulated.

WorkSafe and its Agents are not able to provide advice regarding these laws and requirements. However, it is recommended that you become familiar with these and other relevant requirements.

How to meet your obligations

As the employer, your attitude, support and understanding following an injury will affect the relationship between your organisation and your injured worker. 

Maintaining appropriate contact with your worker is crucial in helping them while they recover and return to work.

The following are some key actions you can take early in the process that will facilitate your workers’ return to work:

  • Contact your worker to ask how they are and to offer support.
  • Provide your worker with relevant return to work information.
  • Let your worker know that your organisation takes health and safety seriously and what you are doing to address the hazards that led to their injury.
  • Tell your worker who the return to work coordinator is and that they should expect a call from the coordinator soon.
  • Ensure your worker has received the brochure ‘Introducing WorkSafe, a guide for injured workers’.
  • Be prepared to make appropriate workplace changes to accommodate your worker's return to work.
  • Advise your other workers what you will do to support and assist them and their injured colleague during return to work and ask them to do what they can to support their colleague.

When does an employer’s return to work obligations start?

As an employer, your return to work obligations start even before the claim has been accepted by your WorkSafe agent. Your obligations must start as soon as you receive: 

  • The injured worker’s certificate of capacity.
  • The injured worker's claim form.
  • Notification from your WorkSafe agent that they have received either of these documents.

Penalties that may apply

WorkSafe actively monitors and enforces compliance with the legislation. A return to work inspector may visit your workplace to assess whether you are adequately complying with your return to work obligations. Inspectors will help ensure you are appropriately informed. If appropriate, they will issue an improvement notice requiring you to comply with your obligations.

Employers who breach their return to work obligations also risk prosecution and financial penalties of up to 180 penalty units for a natural person and up to 900 penalty units for a body corporate per offence.

You are legally obliged to help an injured worker get back to work as soon as safely possible.