Employment rights for ACC claims: both sides of the coin

Wednesday, December 2, 2020

In 2020, it would be hard to come across a New Zealand household who has not either had a member of the household claim ACC for an injury or at least known someone that has had to. Statistics New Zealand reports that in 2018 alone, there were just short of 240,000 work place injury claims across the country. With so many people relying on ACC to maintain a livelihood, what do employees and employers need to know about their rights in the process?

If an employee is injured in their workplace and meets the ACC pre-requisites to receive weekly compensation under the Accident Compensation Act 2001 (“the Act”) the employer must account for the first week of the employee’s wage (of up to 80% of their normal weekly wage) if they are incapacitated due to the workplace injury.

As an employer, if your employee obtains a workplace injury, you are entitled to complete due diligence investigations to ensure their injury and leave is justified. For example, you may pay for the employee to go to a medical or health professional to be assessed and require a medical certificate to be provided that reiterates the state of the injury and medical recommendations.

In recent years, many employers have tried to require employees take their sick/holiday leave whilst on ACC. This cannot be enforced and is a breach of the Act. However, if an employee cannot work because of an injury obtained outside of work, under the Act, an employer can require the employee use any unused sick leave in the first week of incapacity.

Whilst on leave for a workplace injury, the Act and the Human Rights Act 1993 provide protections for employees from being dismissed and discriminated against during their injury and absence from work. An employer is permitted to dismiss the employee only if through a thorough process of medical examinations/evidence and professional advice it is determined that the employee will not be able to return to the job or an adapted version of the job within a reasonable timeframe. The case of McKean v the Board of Trustees of Wakaaranga School ([2007] ERNZ 1) sets out a series of factors which should be seriously considered and investigated prior to dismissal by an employer on medical grounds. These factors, amongst others, include the length of employment, type of employment, nature of the injury and probability of recovery.

In many cases, whereby the injury leave is more than a week, the employer and employee can agree that the employer will top the employee’s ACC compensation wage up to 100% by using existing sick leave available to the employee. There is no obligation on either party to do so however.

If you are an employer where a workplace injury has occurred, and you are unclear on your obligations, it is advisable that you contact ACC and/or an ACC legal professional as soon as possible.

For more information, please contact a member of our employment or health and safety team.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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