THE ISSUE

Employers often find that they need to direct an employee to undergo a medical assessment, in order to be satisfied that the employee can return to work or resume specific duties associated with their position. 

However, it is almost as common for employers to find themselves exposed to a raft of claims by the employee or their union following such a direction, including general protections and discrimination claims.

Following a growing trend of such cases in the courts and tribunals, it seems that the basis for these complaints is usually founded in either:

  • the employer directing the employee to have a medical assessment when it should not have; or

  • the employer failing to ensure that a fair process was followed.

So when and how can an employer lawfully and legitimately direct an employee to undergo a medical assessment?

STEP 1: WHEN CAN YOU DIRECT AN EMPLOYEE TO UNDERGO A MEDICAL ASSESSMENT?

Generally speaking, unless an employer is relying on an express contractual or agreement provision, it should only direct an employee to undergo an assessment by a medical practitioner selected by the employer, when:

  • it has been reasonably identified that an employee may be putting themselves or others at risk of incident or injury; and

  • the employer’s direction that the employee undergo the assessment forms part of the employer’s compliance with its obligations under applicable safety legislation.[1]

Before directing an employee to undergo an independent medical assessment, an employer should therefore first ask itself these 6 questions:[2]

1. Is there a genuine indication of the need for a medical assessment?

For example, have there been prolonged absences from work without explanation, or evidence of an injury related to the employee’s capacity to perform the inherent requirements of their position?

2. Has the employee provided inadequate medical information to explain any absences and/or an inability to perform duties?

For example, if the employee is no longer attending work and the medical information provided gives no indication of return to work – or has no advice about any modifications that could be implemented to make possible a return to work – it may be considered to be inadequate.

3. Is the employer operating in a recognised dangerous or high risk industry?

In some industries (for example, the mining and construction industries), it is generally accepted that more stringent evidence of fitness to perform duties may reasonably be required.

4. Is there a legitimate concern that the employee’s illness or injury could impact themselves or others in the workplace?

While this will need to be addressed on a case by case basis, the physical ability of the employee to perform their duties safely will clearly be relevant.  It is also quite often the case, particularly with mental illness, that while the workplace may not be the cause of the injury it can exacerbate the symptoms.  Accordingly, employers could look at the affected employee’s interactions with other employees and the general approach he/she is taking to their work for evidence that it is impacting others in the workplace.

5. Is there a right to direct the employee to undertake the medical assessment?

The employee’s contract of employment, an enterprise agreement or the employer’s obligation under occupational health and safety legislation may provide the basis for a contractual or statutory right to direct the employee to attend a medical assessment.  These sources should be referenced in any direction that is given to an employee to undergo a medical assessment.

6. Is the medical assessment truly aimed at determining, independently, whether the employee is fit for work?

Any medical assessment that is undertaken at the direction of the employer should solely be used to assess whether the employee can return to work or resume the specific duties associated with their position. For example, the assessment should not be used for any collateral purpose such as the performance management of the employee or to determine whether the employee can perform a role broader than the one they are currently performing.[3]

STEP 2: HOW SHOULD YOU DIRECT AN EMPLOYEE TO UNDERGO A MEDICAL ASSESSMENT?

Once it has been established that the employer can and should direct the employee to undertake an independent medical assessment, the employer should also consider how it directs the employee and the process that it follows. 

For example, employers should consider the following:[4]

  1. Advising the employee of the conduct or events which led to the concerns that he/she is unable to perform the inherent requirements of the position.

  2. Particularising the conduct or events and providing the employee with a chance to respond to those concerns.  An employer should do more than say “we are concerned” or “there have been some problems”.[5]  If there is a legitimate concern, the employer should point to specific examples that give rise to their concern.

  3. Advising the employee of the matters that are going to be put to the medical practitioner prior to the employee undergoing the assessment, and ensuring that these matters are communicated to the medical practitioner in a transparent way so that the practitioner can maintain independence and their report will have more credibility.