What's the answer? Return to work following sickness

Annie Hayes

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What’s the answer? Return to work following sickness

By Annie Hayes

This week Joanne Archer, Senior Solicitor at Clarkslegal LLP and Ranjit Dhindsa, Head of Employment at the Midland’s office of international law firm Reed Smith offer their ideas on returning to work in a clean environment following a bout of sickness.

The question:
I am looking at gaining best practice advice for the length of time organisations that have clean environments (such as hospitals or laboratory based organisations) give before allowing employees who have been off for skin conditions/asthma/claustrophobia back into the clean room environment.

Claire Donegan

The answers:
Joanne Archer, Senior Solicitor at Clarkslegal LLP

There does not appear to be any standard guidance on how long an employee should be excluded for before being allowed to return to work following absence for asthma or dermatitis etc. However, the Food Standards Agency, has given some guidance indicating that it is really a matter for the employee’s GP to evaluate their condition and to determine what risk they pose to health and safety.

Obviously their advice relates to food environments and not clean environments generally, but the advice must be in any such circumstances that a doctor’s report must be obtained before the employee is allowed to return.

The Food Standards Agency produces a leaflet to cover this issue.

On a different issue, the employer has a duty of care to protect its employees’ health and safety. Therefore, if the condition has been caused by work, for example exposure to chemicals, a full risk assessment should be carried out before the employee returns to work and adjustments made to their job accordingly. Failure to do so is likely to expose the employer to a greater risk of a personal injury/disability discrimination claim.

Ranjit Dhindsa is Head of Employment at the Midland’s office of international law firm Reed Smith

If a person suffers from a disease such as Cholera, Smallpox, food poisoning, Measles, Typhus or Rubella, they have what is known as a “Notifiable Disease” under the Public Health (Infectious Diseases) 1988 Act and the Public Health (Control of Diseases) 1988 Act and GP’s, must notify the local authority.

For other illnesses there is not the same level of statutory requirements and best practice differs in different industries.

Typically, people who have suffered from salmonella poisoning should not return to work in an environment where food is prepared and/or served until 48 hours of their symptoms stopping.

In the interests of hygiene and health and safety employees may wish to prevent employees from returning to work for a certain period of time if they suffer from other conditions such as a skin condition, asthma or claustrophobia. The length of time is dependent upon the severity of the condition.

Employers who want to prevent employees returning early from sickness should have a sickness policy explaining that for hygiene and health and safety reasons they must exercise caution before allowing an employee to return to work if they have suffered from an infectious illness or an illness which may put others at risk.

There is no hard and fast rule prescribing how long an employee must be off for before returning to work in a “clean environment”. Much will depend upon the industry the employee works in, for example hospitals or places with chemicals. For guidance and advice, employers can contact the Environmental Health Department.

Employers could require employees to obtain medical advice and to obtain a note from their GP/Health Care Adviser confirming that they have recovered from their illness/condition and that there is no longer any risk to the workplace environment.

Employers who implement a policy of preventing employees from returning to work may need to consider whether they will pay employees full pay and continue to provide benefits while they are off work.

If an employee suffers from an illness/condition which would ultimately prevent his/her return to work the employer may dismiss him/her for being incapable of performing their duties. However, if employers want to take this course of action they must follow the procedure laid down in the Employment Act (Dispute Resolution) Regulations 2004 to avoid a claim for automatic unfair dismissal.

In short, the advice for “clean” organisations is to implement a policy enabling the employer to prevent an early return to work and to treat each case on its facts in terms of the length of time off.

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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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