The Commission has recently rejected an employer’s attempt to introduce compulsory health assessments to improve staff health and wellbeing, on the basis that there was no specific concern about a staff member’s health or capacity.

In Transport Workers’ Union of Australia v Cement Australia Pty Ltd [2015] FWC 158, the Commission was asked to deal with a dispute under an enterprise agreement about the employer’s compulsory health assessment program.

In response to a series of workplace injuries involving several drivers, the employer introduced a compulsory “risk review program” to monitor the health and wellbeing of its workers generally. The program would involve a 45-minute health assessment every 2 years for every employee. Employees would have their blood pressure checked, and their weight, waist circumference and range of motion measured. The health professional conducting the assessment would then prepare a report stating whether the employee was at a “high”, “medium” or “low” risk of injury while performing their role, and identify any preventative health programs that might benefit the employee.

The employer demanded that employees attend the assessments, and threatened disciplinary action for those who did not comply, which led to the Union disputing the assessments in the Commission.The Commission indicated that an employer can lawfully and reasonably direct employees to attend a health assessment if:

  • there is a genuine need for the medical information sought by the health assessment (i.e. a specific concern justifying the assessment);
  • the assessment is focused on whether an employee meets the inherent requirements of his or her job, having regard to the level of risk in their specific working environment;
  • the assessment is made on reasonable terms (including by taking into account whether it breaches any particular law or is supported by a specific legislative duty imposed on the employer or the employee); and
  • the assessment respects an affected employee’s privacy.

In this instance, the Commission was not satisfied that compulsory health assessments were reasonable after taking into account that:

  • employees were already required to participate in mandatory health screening programs under the National Heavy Vehicle Accreditation Scheme;
  • the health assessments were not solely focused on whether an employee was able to meet the inherent requirements of the job (noting that the assessments may result in recommendations that an employee participate in things such as a “Quit Smoking” program or a “12 Week Body Transformation” challenge);
  • the employer could not clearly demonstrate how it would use the results of the health assessment in the workplace, or how it would manage any privacy concerns associated with the assessment; and
  • the employer could not provide sufficient evidence to show that the new program would actually reduce injuries or absences in the workplace.

Lessons for employers

Employers can still direct a specific employee to attend a medical assessment to address an employer’s genuine concerns about that employee’s ability to perform the inherent requirements of his or her job.

Despite this decision, employers can and should introduce voluntary initiatives designed to improve the health and wellbeing of staff generally, and to reduce the likelihood of staff suffering injuries or making WorkCover claims.

However, employers will have to very careful about implementing mandatory health assessments. Any compulsory assessment should be supported by appropriate legal and medical advice, and should do no more than is necessary for the employer to be satisfied that an employee meets the inherent requirements of his or her job.