To find a draft template to request that an employee attends a medical examination prior to returning to work, we recommend the following links:

It is common for employers throughout Australia to want to ensure that potential hires or current employees returning after an injury are mentally and physically fit and are capable of doing the tasks that make up their job duties.  While there are legitimate reasons why an employer would need to ask a worker to undergo a medical examination, there are also some legal risks associated with inquiring about an employee’s health status. An employee is not going to be required to comply with your request to undergo a medical examination in all circumstances and may even have a claim against you if you make an inappropriate demand to undergo a medical examination.

Whether requiring a medical examination is appropriate or not is going to depend upon the specific circumstances of the job you are offering and the employee’s current situation. It is always a good idea to get legal guidance before you go forward with a request or a demand to one of your workers. OHL Lawyers can provide insight into when and why you should and should not ask an employee to undergo an exam and can advise you on the legal risks of acting on specific medical information.

When Can You Ask an Employee to Undergo a Medical Examination?

 

Employees must be careful when requesting a pre-employment screening, or when asking an employee to submit to a medical examination as a condition of returning to work after leave.  There is the potential for legal liability for requesting or requiring medical examinations, but employers also need to make sure they do not risk having a worker get hurt because he or she is physically unfit for work tasks.  Employers need to carefully balance the possibility of a Fair Work Commission complaint versus the risk of a workplace injury.

There are certain situations in which employers should generally err on the side of asking for a medical examination. It may be acceptable, and even advisable, for an employer to ask a potential or current worker to undergo a medical examination:

  • To determine the employee is able to perform the job duties that are an essential part of the job he is being hired to do.
  • To understand the nature and extent of a current or potential employee’s disability in order to understand what accommodations an employer must provide so the worker is able to complete job tasks.
  • To identify current or future risks to the health and safety of the applicant or employee in order to establish appropriate risk prevention measures and in order to comply with duties under worker health and safety laws.
  • To reduce expenditures associated with lost productivity, absenteeism, and staff turnover associated with employee illness.
  • To determine superannuation entitlements and insurance coverage.
  • After an employee has experienced a significant absence from work due to a health condition if the employee fails to provide appropriate medical documentation clearing a return to work.

The Disability Discrimination Act 1992 precludes employers from discriminating against prospective workers on the basis of disability or from considering disability status in setting terms and conditions of employment. Disability is defined broadly to include pre-existing conditions, current conditions, and conditions that may exist in the future.

The Act does carve out an “exemption,” or an exception to the prohibition against considering disability status. An employer may consider a disabling condition that would make it impossible for the employee to carry out the inherent requirements of the job even if the employer made reasonable adjustments for the worker.    An employer may also consider a disabling condition in situations where accommodations to allow the worker to perform job tasks would constitute an “unjustifiable hardship.”  An unjustifiable hardship may exist when an accommodation would have a detrimental effect on other workers, on clients, or on the organization as a whole.

Employers have also been found justified in demanding a medical assessment of employees who provided insufficient documentation or inadequate support for a medical certificate attesting to fitness for work.  Reasonable concerns about the fitness of a worker could arise if an employee is absent from work for an extended period, and then returns unannounced after the absence or provides limited or no medical information upon returning.  The higher the risks associated with the work that the employee does, the greater the justification for an employer to request a medical exam. This is especially true if the employee’s stated condition necessitating his absence is a condition that would affect job capacity.

Whether making a request before a worker has been hired, or asking a current employee to undergo a medical examination, employers should be sure they have a legitimate necessary reason to ask for a medical exam and should be certain to fully explain to the worker why the request or demand for an examination is being made.  By providing strong justification for any medical examination requests, especially when the medical examination is intended to protect the employee, an employer can reduce the chances of having a claim made against them for asking for a medical examination.

 

To learn more about asking an employee to undergo a medical examination, and to get advice on how to handle an employee’s refusal to take an examination or medical results showing an employee is unfit, contact OHL Lawyers at 02 8315 4034 or contact us via ohl@owenhodge.com.au to schedule a free consultation with one of our experienced employment lawyers.