In the last quarter of 2019, The Workplace is shining a spotlight on managing ill and injured workers.

This blog is the first of a three-part series into some of the firm’s most frequently asked questions.

In this first instalment, we explore the above question which, unsurprisingly, does not always have a simple answer.

When is a direction lawful and reasonable?

The first thing to consider is whether the request to provide medical information or attend an IME would be a lawful and reasonable direction.

For a direction to be lawful and reasonable, an employer must establish a genuine need for the information. This may arise, for example, where:

  • the employer has reasonable concerns for the employee’s health and safety or the safety of others[1];

  • the employer is required to affirm an employee’s fitness to work after an extended absence[2]; or

  • there is otherwise a need for the information (for example, because of the general nature of medical reports previously provided by an employee[3]).

The direction must also be reasonable, meaning that the information should be directed to the inherent requirements of an employee’s job[4] and the assessment should be held at a reasonable time and location, having regard to the employee’s circumstances and nature of the medical condition[5].

Approach to seeking medical information

So, what does this mean in the context of your business and what steps should you take in matters like this?

In most cases, the following steps are essential in the lead up to directing an employee to provide medical information or attend an IME:

  • Step 1 – Determine the inherent requirements. This first step is often crucial to showing there is a genuine need for the information to be sought and a reasonable basis for the direction. The inherent requirements of a job are the essential activities that must be carried out to fulfil the purpose of an employee’s position[6]. The job description for the role is often a good place to start in an inherent requirements assessment, but the task does not stop there[7].

  • Step 2 – Prepare the request for information. The employer’s request for information must be carefully considered by reference to the inherent requirements and any surrounding circumstances relevant to the doctor’s consideration.

  • Step 3 – Discuss the process and obtain consent. The final step is to ideally have a discussion with the employee in relation to the proposed course of action (subject to their medical condition and ability to attend for a meeting or have a discussion by phone). In some cases, an employee may agree to the next steps and sign a consent form in which case you will be able to send the request for information to the doctor. In other matters, the meeting may be more contentious and require a formal direction to provide information in writing.

What happens next?

Stay tuned for the next blog posts in the series. In these blogs, we will consider what happens next in managing ill and injured workers including the following topics:

  • how to assess employee medical information, including dealing with conflicting opinions; and

  • when a failure to follow a lawful and reasonable direction constitutes a valid reason for dismissal.