Laws that affect return to work requirements
There are laws that affect how you manage return to work processes for people experiencing a mental illness or a period of mental ill-health. This legislation can vary based on your jurisdiction, whether the workplace was a contributing factor in the experience of mental ill-health and other circumstances. Below introduces the laws that may apply; however, it is important that you understand what applies to your unique circumstances.
Part of the Staying and returning to work module.
The laws affecting return-to-work requirements can be different depending on which state or territory you’re in. Make sure you know what laws apply where you are.
Workers compensation legislation
Workers compensation legislation details requirements for managing psychological injuries which were caused or exacerbated by the workplace. This legislation often includes requirements for payments, treatment obligations as well as return-to-work policies, practices, processes and plans.
Workers compensation laws may vary between states and territories. For example:
- A return-to-work return to work plan is compulsory in most jurisdictions, but it is not in others.
- The minimum time off work before a return-to-work plan is compulsory also varies across jurisdictions.
Anti-discrimination and equal employment opportunity legislation
This legislation aims to ensure discrimination and harassment do not occur in the workplace. It means decisions about employment, including recruitment and promotion, are not affected by personal characteristics that do not influence how well someone can do the job. Unlawful discrimination happens when a person is treated unfavourably at work because of personal attributes that do not affect their ability to do their job effectively.
As an employer, you should not treat a returning employee less favourably because of their mental illness. You must also make reasonable adjustments for a returning worker. Under the Disability Discrimination Act 1992, an adjustment is considered reasonable unless it causes unjustifiable hardship to the employer or organisation. Examples of unjustifiable hardship can be significant financial cost, an amendment to the physical building that is not possible due to council or other restrictions, or an adjustment that would unfairly disadvantage other employees.
You can find more information on the Australian Human Rights Commission website.
Fair Work Act
The Fair Work Act 2009 provides a framework for workplace relations in Australia. It covers terms and conditions of employment as well as rights and responsibilities of employees, employers and organisations. The Act prohibits discrimination.
The Fair Work Ombudsman can investigate and act about workplace discriminatory practices that happened (or continued) after 1 July 2009.
Under the Fair Work Act 2009, full-time workers are entitled to 10 days paid personal leave (for sick and paid carer’s leave) per year. Part-time workers receive a pro-rata entitlement to sick leave based on the number of hours they work. Under the Fair Work Act 2009, an employer may not do, threaten, or organise any of the following:
- dismiss an employee returning to work after mental illness
- injure the employee in their employment
- alter the employee's position to their detriment
- discriminate between one employee and other employees
- refuse to employ a prospective employee because of their mental illness
- discriminate against a prospective employee with a mental illness on the terms and conditions in the offer of employment.
You can find more information on the Fair Work Ombudsman’s website.
Requests for flexible working arrangements are also covered under the National Employment Standards, because they allow for people with a disability to request flexibility and require employers to have ‘reasonable business grounds’ for refusing requests. See Requests for flexible working arrangements - Fair Work Ombudsman
Work health and safety law
Work health and safety (WHS) laws aim to protect the health and safety of workers and other persons through the elimination or minimisation of risks arising from work. Employers must comply with the state, territory or Commonwealth legislation that applies to them.
Under WHS laws, a person conducting a business or undertaking must identify and eliminate or minimise risks to health and safety, so far as is reasonably practicable. These responsibilities vary from state to state. Find out more information about employer rights and responsibilities in your state or territory: ACT, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia, the Commonwealth .