Out of work incidents and employee sick leave entitlements

At Sync or Swim, we are often asked by business owners and managers whether an employee is entitled to use their accrued sick leave entitlements for injuries caused by an out of work incident. Sometimes these injuries occur in extreme environments such as playing semi professional football, boxing and rock climbing.  

Whether you consider it fair or not, irrespective as to how an employee becomes injured, they will be entitled to paid sick leave for the period, which they are unable to work provided they can prove that they are incapacitated for work. There are a number of risk management strategies both employees and employers should consider implementing in order to minimise the impact, which a serious out of work incident can have on both a business as well an employee’s personal situation.

Pursuant to the national employment standards prescribed by the Fair Work Act 2009 (Cth), full time employees are entitled to a minimum of 10 days paid personal or carer’s leave each year. In the event that an employee does not utilise their 10-day allocation in a year, it will carry over to the next year. The employee will then continue to accrue additional sick leave on top of any previously accrued amount. Part time employees will accrue pro rata of 10 days each year depending on their hours of work.

An employee can take paid sick leave if they are unable to work due to a personal illness or injury. This includes stress and any pregnancy related illness. An employee can also take paid leave to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting that member.

If an employee is unable to return to work due to the extent of their injuries sustained outside of work, they will only be entitled to paid personal leave until such time that their accrued entitlements have been exhausted. From there an employer may consider putting the employee on unpaid leave or terminating the employment arrangement.

It is easy to see how business owners could become concerned about long term employees who have accrued a significant amount of paid personal leave entitlements. We recommend that business owners provision both from a financial perspective and also a human resources perspective that at some stage large amounts of sick leave may need to be paid out. If you prepare adequately for the worst and hope for the best, you will be ready for whatever comes.

At the end of the day, having employees on board who participate in sports and adventurous activities on the weekend is not necessarily a bad thing. Such activities help to keep workers fit for any physical work duties and generally improve overall health and wellbeing.

Whilst some employers may feel a sense of trepidation about their employees participating in risky sports on the weekend, there is no point worrying too much about it. Accidents can happen at anytime even playing lawn bowls or walking to the letter box. The best thing that an employer can do from a risk management perspective is have some sort of plan in place so that if one of their key staff members is unable to work for a significant period as a result of a sporting injury or otherwise, they are able to quickly obtain competent temporary staff at short notice to keep the business functioning.

As a business owner, if one of your employees does become injured outside of work, it is important that you request medical evidence that they are fit and able to recommence their regular duties prior to coming back on board. This is particularly important for heavily physical jobs. The reason for this is that if an injured employee returns to work before they are ready and their previous injury is aggravated requiring further time off work, it becomes very difficult to prove whether the subsequent incapacitation was caused by work or due to the previous injury. Such situations can result in a number of workers’ compensation related issues and implications.

Sync or Swim recommends that business owners counsel their employees in regards to the potential implications a serious injury outside of workplace may have on their long term career prospects. Whilst this is not a legal requirement, it shows that you care about your workers and have their interests at heart. 

We recommend that you advise your employees who participate in high risk sports, to consider taking out personal income/injury insurance or that they at least make enquires with the relevant sporting organisation or local club’s management to determine whether they are covered under any group insurance policy. This is something you, as a business owner, should also consider if you are also participating in such sports. Such insurances can become a much needed lifeline for individauls who are unable to work due to an injury and have exhusted all of their paid sick leave entitlements. As with all insurance matters, it is important to seek professional advice to determine whether such coverage (if offered) by a sporting club or organisation is sufficient for the relevant individual's needs.

For those individuals not competing or playing sport for a particular club, joining a sport’s local association is something, which should also be considered. Certain associations offer insurance coverage for injuries sustained whilst participating in a particular sport even if it is merely for recreational purposes. Bicycle Queensland and Surfing Queensland are examples of such associations.

The interactions between our personal lives and our professional lives often require careful consideration and planning by both business owners and employees. Sync or Swim recommends that you obtain professional advice in relation to any insurance or employment law issues before taking any action in response to this article. If you need a hand with any HR matter in your business or locating a qualified insurance or legal expert, do not hesitate to give Sync or Swim a call today.

Article by: Paul Bright, Business Development and Compliance Specialist