Vocational Rehabilitation

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Vocational Rehabilitation

• Hazel Armstrong
• Barrister and Solicitor
• June 2009

2
Challenges

• In this presentation I am focussing on the legal
  incentives provided by the 2008 Amendment Act
• New incentives on employers and ACC to help
  older workers to recover and get back to work
• New incentives to provide high quality
  rehabilitation
• New incentives to provide for longer periods of
  rehabilitation
• New provision focussing on fair compensation for
  injured employees

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Vocational rehabilitation and ageing workforce

• People are working for longer NZ has an ageing
  workforce
• Desire for employers and society to retain
  skilled older workers in the workforce
• Desire by workers to stay in the workforce longer
  to retain connection to the workplace and to
  maintain higher income from earnings (cf
  superannuation)

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Reasons for ageing workforce

• Age of eligibility to superannuation may be
  extended out to 67
• Level of superannuation may not be sufficient to
  support people living solely on superannuation
• Family members may not be in a position to
  support older people at home
• Society may wish to encourage people to stay in
  work longer
• People are healthier for longer

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Age Discrimination and vocational rehabilitation

• From 1st October 2008 IPRC Act amended
• Section 85 provision of vocational
  rehabilitation amended
• Receipt of superannuation no longer a ground for
  discrimination against claimants seeking
  vocational rehabilitation

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Age discrimination and vocational rehabilitation

• ACC cannot discriminate on the basis of age.
• Section 19 of the Bill of Rights Act and Human
  Rights Act applies.
• Section 21, The Human Rights Act 1993 prohibits
  discrimination on the basis of age.
• An employer cannot discriminate on the basis of
  age. Section 105 ERA says such discrimination is
  a ground for a personal grievance.

7
New duty to provide VR

• If an older worker is injured whilst they are
  employed, there will be a duty to provide
  vocational rehabilitation on the employer and
  ACC.
• An injured ageing worker can seek vocational
  rehabilitation.
• If an employer does not provide vocational
  rehabilitation and terminates the employee
  because they are not medically fit to work, this
  would be a ground for unjustifiable dismissal.

8
New policy for ageing workforce

• ACC and the employer should provide information
  about these new rights.
• ACC and employers should advise ageing workers
  how to access vocational rehabilitation.

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High Quality RehabilitationVR can be for longer
than 3 years

• From 1st October 2008 VR can be longer than 3
  years in duration
• E.g. graduated return to work, selected duties
• Retraining can be 3 years in duration
• Legal incentive has been provided to ensure full
  recovery before return to work
• Employers risk PG or review proceedings under
  IPRC Act.

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High Quality RehabilitationEarnings to be taken
into account

• From 1st October 2008, the persons earnings at
  time of injury are relevant when deciding on
  suitable alternate work
• Relevant for those in employment and those whose
  employment has been terminated.
• VR must be tailored to high quality
  rehabilitation outcomes
• This provision applies for rehabilitation plans
  developed after 1st October 2008.

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New Policy - Abatement

• Earnings do not include
• payment made on termination of employment in
  respect of leave entitlements (e.g. holiday pay)
  (NEW)
• Redundancy payments
• Retiring allowances e.g. medical retirement
• Pensions
• Therefore these earnings cannot be abated against
  weekly compensation. Collective Employment
  Agreements should be amended to reflect the IPRC
  Act 2001.

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Conclusion

• The amendments to the IPRC Act 2001
• Provides incentives for high quality Vocational
  Rehabilitation
• Poses new challenges to employers and ACC
• Gives greater protection to injured employees
  especially ageing workers