Union delegates and officials recently participated in seminars about how to deal with directions to attend medical examinations.
Maurice Blackburn held the seminars in Melbourne, Sydney and Brisbane.
Here is a short overview in case you missed it, or as a refresher.
When are employees asked to attend a medical examination?
We are often asked for advice about what to do when an employer asks an employee to hand over medical information, or to attend a medical examination by a doctor of their employer's choice. Usually this happens in one of the following circumstances:
The legal framework
Employers have a common law duty to take reasonable care to protect their employees from foreseeable injury arising from their employment. Therefore, employers have an obligation to ensure that employees are medically fit to perform the inherent requirements of their job.
Employers are also required under occupational health and safety law to provide and maintain a working environment that is safe and without risks to health. This includes ensuring that employees are medically fit to perform their duties.
Finally, it is a well established employment law principle that employees must follow the lawful and reasonable instructions of their employers.
Applying the law
Every case will be different and will depend on its own unique set of facts.
However, in general, it may be a lawful and reasonable direction to require an employee to submit to a medical examination by a company nominated doctor where:
- it is reasonable for the employer to make such a request, and
- there is a genuine indication of a need for it.
There are many factors to take into account in considering whether a there is a genuine need for an employee to attend a medical examination, including:
- whether the injury or illness for which the employee is absent from work is related to the inherent requirements of the employee's position
- whether the employee has had prolonged and/or unexplained absences from work
- the nature and content of medical information already provided by the employee to the employer - in particular, if the employee has already provided medical information and whether it addresses issues of fotness to perform duties.
- whether there are unexplained inconsistencies in the employee's medical certifications or absences
- the nature of the employee's workplace, including the type of work performed and the degree of risk associated with that type of work, and
- whether the employer has legitimate concerns that the illness or injury will impact on others in the workplace
As well as the requirement that there be a genuine need for a medical examination, the actual direction to attend the medical examination should itself be reasonable. The factors to consider in determining whether or not a particular proposed medical examination is reasonable include:
- whether the medical examination is specific and focussed on the inherent requirements of the job (or is it a fishing expedition?)
- whether the medical practitioner is apprised of the employee's actual job requirements (as opposed to, for example, a generic position description), and
- whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.
Some practical strategies for dealing with directions to attend medical examinations
It is important to gather as much information from the employer as possible about the nature of the proposed medical examination of an employee, before deciding what your next move will be. You should let the employer know that you are considering its request, but in order to do so you require further information, such as:
- the grounds on which the employer believes it is entitled to direct your member to attend a medical examination;
- the questions that will be asked of the medical examiner
- what documents and copies of the documents that will be provided to the medical examiner
- the nature of the proposed medical examination, for example, will it include a physical assessment?, and
- the position against which your member will be assessed, for example will your member be assessed for fitness to perform his or her actual job, or against a broader job description for a general classification of workers?
If you have the opportunity to have input for the questions asked of the medical examiner, you should ensure that the doctor is being asked:
- for an opinion about the 'inherent requirements' of the position, rather than the 'full range of duties'
- for an opinion on the actual position of your member, rather than a broader job description of a general classification of workers, and
- whether there are any adjustments that could be made to the role to enable your member to perform the inherent requirements of the position.
We find that these approaches are of assistance because it gives you an opportunity to influence the outcome, but also puts the employer on notice that you are taking the matter seriously, in which case they may be more careful to strictly comply with the law.
If you have any questions about this, please call our office to speak with one of our employment lawyers, or email Emeline Gaske on firstname.lastname@example.org.