It is important that employers understand when it is and is not okay to require employees to undertake a medical examination. This article looks at some recent cases and considers scenarios that would both allow for such a request and where it is not likely to be upheld as a lawful and reasonable management direction.
Generalised Medical Assessments
In TWU v Cement Australia Pty Ltd [2015] FWC 158, the employer sought to require all of its drivers within a particular division to attend compulsory medical assessments to address high injury levels within that area of its business. The medical assessments were to be carried out by external providers and would assess general health and fitness levels. The drivers were already required to have regular medical assessments as part of the National Heavy Vehicle Accreditation Scheme.
The TWU brought the proceedings on behalf of affected employees. They argued that the company did not have the right to direct the employees to attend the assessments and that there were privacy concerns around how the information, obtained in these assessments, would be used and stored.
The employer countered that the assessments were intended to help evaluate employees’ risks and were not intended to test their ability to fulfil the inherent requirements of their roles.
The Commissioner held that in the circumstances the direction was not reasonable or lawful. There was an insufficient nexus or link between the assessments and a reduction in injury rates and the assessments did not relate to each employee’s ability to perform the inherent requirements of their job.
Assessments to Determine Capacity and/ or Restrictions
The inherent requirements or core tasks in a role are a critical consideration and when relied upon legitimately can provide a lawful basis upon which to seek medical information. In Mr Darrin Grant v BHP Coal Pty Ltd [2014] FWC 1712 (upheld on appeal in [2014] FWCFB 3027) the employee had provided insufficient medical information attesting to his capacity to return to work following a shoulder injury. The employer, BHP, required him to attend a company organised medical assessment. The employee repeatedly refused to attend scheduled appointments and was later terminated for failure to follow reasonable management direction.
The Commissioner, in this case, held that the dismissal was not unfair and the employer was entitled to request the employee to attend a medical assessment for the purposes of determining if he could fulfil the inherent requirements of his role and what restrictions there were, if any, on his ability to return to work.
It is worth noting that the Commissioner also commented that the employer should have made the purpose for the medical assessments clearer to the employee given that he had been given the all-clear to return to work from his own doctor.
Lessons for Employers
As with most things legal, whether or not an employer can require an employee to undertake a medical assessment will depend on the circumstances of the situation.
Generally speaking, an employer is entitled to seek medical information to determine if an employee is safely able to fulfil the inherent requirements of their role. Practically this most often arises following a significant illness or injury and where there are concerns about the person’s capacity to return to their pre-injury role. These types of medical assessments may also be a valuable tool if you need to understand what restrictions there may be based on the person’s medical condition.
There is not however a general and broad reaching entitlement that allows employers to require employees to participate in medical assessments for any reason or even a reason determined by the employer as reasonable. The purpose of the assessment must be clear and bear an obvious relationship with the employee’s ability to do their job.
Sarah Waterhouse
Solicitor
BlandsLaw
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