Managing non-work-related illness or injury

Sonya Black, LLB (Hons), B.Com, Legal Team Manager – Workplace Law Team, Avant Law, QLD

Oliver Wilhelm, Ba App Sci (Clinical)/Ba Chiro Sci, MPhtySt, LLB, Associate, Workplace Law, Avant Law

Monday, 10 July 2023

Runner clutching knee

A receptionist recently sustained a non-work-related knee injury. She has told the practice manager she is unable to walk and will not be able to come to work for the time being. She mentioned that her specialist has recommended surgery to fix the problem, but she does not want to have surgery.

The practice manager is preparing next month’s roster and needs to know if she should put the receptionist on the roster. Her latest medical certificate is due to expire in the middle of the roster period. All her medical certificates so far have simply stated that she has a “medical condition,” without any further information.

Requesting medical evidence

Workplace health and safety legislation requires an employer to ensure, as far as reasonably practicable, that workers are safe while they are at work.

In the context of employees with known injuries, this will include an assessment of:

  • Whether the employee can safely perform the requirements of their role.
  • Whether any adjustments are required so the employee can safely perform the requirements of their role.
  • Whether there are any other measures that should be put in place to minimise the risk to the employee and other employees in the workplace.

In some cases, employees are happy to engage in this assessment and to discuss their medical condition and treatment plan with their employer. They are also confident and comfortable enough to ask for special measures to be put in place which have been recommended by their treating doctor.

However, this is not always the case. If independent medical information is not available to a practice, doctors working at the practice should not conduct their own assessment of the employee’s fitness for work as tempting as it might be.

Sometimes a medical certificate from an employee’s treating doctor confirming the employee is fit for work or fit for work with some adjustments, is sufficient. In other cases, such as mental illness cases, an employer may need to ensure the relevant doctor properly understands the employee’s role and the issues which are relevant. The doctor would otherwise rely solely on what the employee tells them about the role.

In more complex circumstances, or where medical information is being withheld, practices should follow the steps below to obtain this medical advice.

Step 1: Seek consent

The practice manager needs the receptionist’s consent to obtain information from a doctor. Many practices have consent forms for this purpose, so it is useful to ask the employee to provide this consent in the first instance. If the practice does not have a consent form, the employer can prepare a relevant consent form. The practice manager should explain to the receptionist that the practice has obligations as an employer and they need to ensure the receptionist is safe at work.

If the receptionist does not consent, the practice will need to determine whether it has a legal right to ask the employee to attend a medical assessment. If consent is not given, seek further advice.

Step 2: Write to the treating specialist

If the employee does consent, the practice manager should write to the doctor. Sufficient information should be included to enable the doctor to understand the inherent requirements of the employee’s role. For example:

  • Details of their duties and responsibilities.
  • Information about the physical requirements of the role (for example, is the receptionist required to walk as part of her role, how long is she expected to sit?)
  • Copies of any prior functional assessments or medical reports that may be useful.
  • Information about the work environment.
  • Any other relevant background about the position. For example, in the case of mental health assessments, it is helpful to know any reporting arrangements or inappropriate conduct the employee may have engaged in.
  • Information about workplace processes that the employee may be involved in (for example, a workplace investigation, disciplinary process or performance management process).

The practice manager’s correspondence should seek specific information from the doctor about the employee’s condition and fitness for work. This may include:

  • The precise nature of the employee’s condition to determine whether they can currently perform the inherent requirements of their position or if they would be at risk of injury or aggravation of their existing condition.
  • The employee’s prognosis, including when it is likely they will be able to resume work.
  • Information on medications they are currently taking that could affect their ability to safely perform their duties.
  • Recommendations for any adjustments that could be made and whether these are permanent or temporary in nature.

If the employee is unable to perform their job, the practice manager should consider whether the practice can provide any special services or adjust their duties, to allow them to perform their job. For example, the employee’s hours could be adjusted.

Step 3: Make an informed decision

After considering the medical information, the practice manager can decide whether the employee is fit to return to work or not, or only fit to return with some adjustments to their duties. Please seek advice if you are concerned that the employee may not be able to perform the inherent requirements of the position in the foreseeable future and you are considering termination of employment.

More information

If you are faced with managing an ill or injured employee, it’s important to seek specific advice for the situation.

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This publication is not comprehensive and does not constitute legal or medical advice. You should seek legal or other professional advice before relying on any content, and practise proper clinical decision making with regard to the individual circumstances. Persons implementing any recommendations contained in this publication must exercise their own independent skill or judgement or seek appropriate professional advice relevant to their own particular practice. Compliance with any recommendations will not in any way guarantee discharge of the duty of care owed to patients and others coming into contact with the health professional or practice. Avant is not responsible to you or anyone else for any loss suffered in connection with the use of this information. Information is only current at the date initially published.

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