Employers may have the right to direct an employee to provide further medical information or attend a medical assessment as an express term in an employment contract, workplace agreement, company policy or under legislation. An employer may also have a common law right to direct an employee to provide further medical information or attend a medical assessment if the direction is lawful and reasonable. Whether the direction is lawful and reasonable is a question of fact and depends on the particular circumstances. In this article, we consider six circumstances that favour such a direction as being lawful and reasonable.
- Where the employer has statutory occupational health and safety obligations – Where an employer has strict obligations to ensure the safety and well-being of its employees, it may be necessary for the employer to be able to require further medical information or attendance at a medical assessment to comply with its obligations. This was the case in Blackadder v Ramsey Butchering Services Pty Ltd  FCA 603, where the employer’s absolute duty to “ensure the health, safety and welfare at work of all the employer’s employee’s” under the Occupational Health and Safety Act 1983 (NSW) meant that the employer had to be able to direct an employee to attend a medical assessment.
- Where an employee is absent for an extended period – The longer the period of the employee’s absence, the more likely that it is reasonable for the employer to require confirmation that the employee is fit to undertake their pre-absence duties. In Grant v BHP Coal Pty Ltd  FWC 1712, Mr Grant had been absent from work for more than eight months. This was a factor in the Fair Work Commission finding that a direction for Mr Grant to attend a medical assessment prior to his return to work was reasonable.
- Where the medical information provided is insufficient – In Grant v BHP Coal Pty Ltd  FWC 1712, the medical evidence was insufficient because it was too generic (the medical certificates provided by Mr Grant merely stated that he was either “fit” or “unfit” for work) and did not particularly focus on an occupational assessment. It was not evident from the existing medical information that Mr Grant could safely perform his duties and so it was reasonable for BHP to seek to satisfy itself of this by requiring Mr Grant to attend a medical assessment with a certified occupational physician.
- Where the employee works in a high risk role or workplace – In finding that it was reasonable for BHP to request Mr Grant to attend a medical assessment, the Fair Work Commission considered that Mr Grant, who worked as a boilermaker on a mine site, “performed potentially dangerous work in an inherently dangerous workplace”.
- Where the medical evidence is conflicting or inexplicably changes – An employer may require further medical information or attendance at a medical assessment where the existing medical evidence is conflicting or inexplicably changes. In Columbine v The GEO Group Australia Pty Ltd  FWC 6604, a correctional officer was working in an administrative position under modified duties for two years following a workplace injury. On being advised that there was no more administrative work for her to do and that her employment would be terminated, the officer provided a medical certificate stating that she was fit to perform the role of correctional officer. The Fair Work Commission held that employer’s request to communicate directly with the officer’s medical practitioner or for the officer to attend an independent medical assessment was reasonable to allow it to understand the reason behind the change.
- Where the employee’s absence affects the employer’s ability to plan and manage its business – In Australian and International Pilots Association v Qantas Airways Ltd  FCA 32, a pilot provided two successive medical certificates stating that he was suffering from depression and would be unfit for normal work for a number of months. Qantas requested a report from the pilot’s doctor on his diagnosis, prognosis, capacity to return to his pre-injury duties and the anticipated time frame. The Court considered Qantas’ operational requirements, including the need to cover the pilot’s absence and that rosters were planned for up to 10 weeks in advance, in finding that the request was reasonable.
These are just some of the many circumstances that may be considered in determining whether a direction to provide further medical information or attend a medical assessment is lawful and reasonable. It is important that you carefully consider and manage each employee based on their own individual circumstances.
If you do direct an employee to provide further medical information or attend a medical assessment, explain to the employee why you are requiring them to do this. In Grant v BHP Coal Pty Ltd  FWC 1712, the Fair Work Commission considered that it was “inadequate” for BHP not to clearly explain to Mr Grant why it required him to attend a medical assessment, or to assume that the reason was “obvious”.
Management of ill and injured employees is a complicated area that is fraught with risk. The legal risks include claims for unfair dismissal, adverse action, discrimination, or breach of contract, award or agreement. If your direction is found not to be lawful and reasonable, any disciplinary action you took against the employee who failed to comply with the direction may be unlawful.