My employer expects that I work from home whilst on sick leave – what can I do?

My employer expects that I work from home whilst on sick leave – what can I do?

In today’s economy, employers constantly strive for higher productivity and efficiency in the workplace. Whilst this is critical to the success of the business, it may often have a detrimental impact on its employees where this push for productivity impinges on the workplace rights of employees.

Right to sick leave without being ‘punished’

One such workplace right is the right to take paid personal leave when not fit for work because of a personal illness pursuant to section 97(a) of the Fair Work Act 2009 (Cth). This right is, of course, subject to the provision of evidence of sickness or illness such as a medical certificate or statutory declaration and applies to non-casual employees. Provided that sufficient proof of illness is provided to your employer and your employer is informed as soon as practicable of your intention to take sick leave, you cannot be forced to work from home whilst on sick leave.

Instructions from your employer to work from home whilst on sick leave must be distinguished between attempts to simply contact you. An employer is likely within its rights to communicate with its employees whilst they are on sick leave whether this is by email, phone, or text message but this does not correspond with an obligation for the employee to respond to work-related matters. Your employer cannot force this pseudo-obligation upon you during a period of sick leave. Under section 340(1)(a) of the Fair Work Act 2009 (Cth), an employer cannot take adverse action against an employee as a result of the employee exercising his or her workplace right to take sick leave. Adverse action may include formal warnings, demotion, implementing a performance improvement plan, dismissal and altering your employment to your detriment. If an employer fails in this obligation, recourse is available in the form of a General Protections application to the Fair Work Commission (If you would like further advice on lodging a General Protections application, submit an enquiry in the field below).

Right to a safe workplace without risks to health

An employer that forces you to work from home whilst on sick leave may also have breached its obligation to provide a workplace that is safe and without risks to health under section 21 of the Occupational Health and Safety Act 2004 (Vic). If you are unfit to work due to personal illness or injury, working from home whilst on paid sick leave does not entitle an employer to ask you to work from home. A requirement to continue to work from home whilst unwell may exacerbate the employee’s condition and poses a risk health of employees in the workplace.

Things to remember:

• Always inform your employer as soon as practicable of your intention to take sick leave;
• Always be prepared to provide evidence of your illness or injury, typically by providing a medical certificate or statutory declaration;
• You are not obliged to respond to workplace communications whilst on sick leave – this is at your discretion; and

You are entitled to pursue a General Protections application in the Fair Work Commission if you have been ‘punished’ for refusing to work whilst on sick leave.