The do's and don'ts of pre-employment medical declarations

It may seem like common sense however oil and gas company, Chevron Australia, recently found itself the target of media controversy regarding a job application form that requested details about the reproductive histories of prospective employees.

The medical history form asked prospective employees a range of questions regarding any births, miscarriages, stillbirths, abortions and/or children born with defects. The form also asked for other personal information on alcohol consumption and tobacco use and whether female applicants were incapable of having children and/or currently pregnant. These questions are clearly invasive and potentially in breach of discrimination and privacy laws. Further, it is unclear how such information could possibly be relevant to an applicant's ability to perform work at Chevron.

Chevron has subsequently withdrawn the application form. However, it will be unable to withdraw any negative impressions that may have been formed about the company's employment practices. Therefore, this is a good reminder for employers as to what, and more importantly what not, to put on a pre-employment medical declaration.

It is well established that an employer is entitled to ensure that an employee is fit to perform the inherent requirements of the position in which they are employed. This interrelates with an employer's obligation under section 21 of the Occupational Health and Safety Act 2004 (Vic), to provide and maintain, so far as is practicable, a working environment that is safe and without risks.

Asking prospective employees to complete a preemployment medical declaration is one tool which an employer can utilise to satisfy itself that an employee is fit to perform the inherent requirements of a position.

By completing a pre-employment medical declaration, the prospective employee declares whether he or she has any illnesses or injuries which would impact on his or her ability to perform the inherent requirements of the position. An inherent requirement is something that is essential to the position. The practical test for determining whether or not a requirement is an inherent requirement is to consider whether the position would essentially be the same if that requirement were dispensed with1. For example, an inherent requirement of the role of receptionist is the ability to communicate by telephone. However, it will not be an inherent requirement to hold a telephone in hand. The reason for this is that providing the receptionist with a headset would enable him or her to communicate via telephone. Therefore, the position will essentially be the same if the requirement to hold a telephone in hand is dispensed with.

It is important to note that if a pre-employment medical declaration is not confined to the inherent requirements of a position, an employer may run the risk of a discrimination claim and potentially be in breach of privacy laws. In this regard, it is imperative that a list of the inherent requirements of a particular position be provided to prospective employees where they are required to complete a pre-employment medical declaration.

A correctly drafted pre-employment medical declaration has several benefits. In Victoria, Sections 82(7) and (8) of the Accident Compensation Act 1985 state that where an employee fails to disclose a pre-existing injury or disease where requested by an employer in the proper way, any recurrence, aggravation, acceleration, exacerbation or deterioration of that pre-existing injury or disease is not compensable. Therefore, a correctly drafted pre-employment medical declaration may be of assistance in having a workers' compensation claim rejected.

Further, if an employee completes a pre-employment medical declaration dishonestly, there may be scope for dismissing the employee. This is particularly the case where an employee's signed employment contact contains a guarantee that all information provided to the employer is accurate. However, it is important that employers seek legal advice prior to dismissing an employee for completing a pre-employment medical dishonestly, as the risks sitting around such dismissals need to be carefully navigated.

A pre-employment medical declaration is also a useful device in assisting an employer to meet its obligations under the Equal Opportunity Act 2010 (Vic) to make reasonable adjustments. This obligation requires employers to make reasonable adjustments to a position in order to enable an employee or prospective employee to perform the duties of a position. Using the above example of the role of receptionist, providing the employee with a headset to enable the employee to communicate by telephone (where that employee is unable to hold a telephone in hand) would be considered a reasonable adjustment of the role.

Recommendations

The main message to take away from this article is that whilst pre-employment medical declarations have many uses, it is clear that such declarations should be drafted carefully so as to avoid breaching discrimination and privacy laws.

Specifically, such declarations should be confined

to the inherent requirements of a position. In this regard, a list of the inherent requirements of a position should be provided to a prospective employee who is required to complete a pre-employment medical declaration. Additionally, for Victorian employees, such declarations should refer to Sections 82(7) and (8) of the Accident Compensation Act 1985. Finally, withdrawing any employment offers on the basis of the information contained in pre-employment medical declarations, or any dismissals for dishonestly completing a pre-employment medical declaration, should be carefully managed with the assistance of legal advice.