IN BRIEF
One of the common concerns that employers have is whether their employees are well enough to carry out their duties. This may be because an employer is particularly overweight, may be displaying episodes of dizzy spells or is obviously labouring with a bad back or a sore knee.
The employer remains concerned as to their capacity for carrying out their job without further injuring themselves or endangering others.
Last year, the Fair Work Commission handed down a decision allowing employers to require an employee to undergo a medical assessment where they had genuine concerns about the employee's ability to carry out their job. In that case, the employee refused to undertake the examination and the employer – after a process – terminated him.
But what if the employer has a general concern about the health of all workers carrying out a particular function without any specific evidence of ill health on their individual part?
For example, could an employer require that all forklift drivers undertake examinations in relation to their health? In a recent case, an employer engaged an external consultant to carry out bi-yearly examinations of their drivers. It is possibly significant in this case that the same drivers were already required to undertake regular medical assessments pursuant to the National Heavy Vehicle Accreditation Scheme. The Union pointed to privacy concerns about how the information would be stored.
The Commissioner refused the company's request because, in her view, the company had not established, on the information at hand, a genuine need for an entire segment of the workforce to undertake such an assessment. In her view, the proposed medical examination was not being conducted to determine whether the employees could carry out the inherent requirements of the job.
Further, the Commissioner appeared to share the privacy concerns of the union, i.e. that the company did not have a plan to properly manage the information received.
Interestingly, this decision was made by the same commissioner who found in favour of the company last year being entitled to require an employee to undergo a medical assessment prior to returning to his role.
The clear learning from this is that where an employee discloses or displays specific health limitations that cast doubt on their ability to carry out their job, employers can require them to undertake a medical assessment before returning to work.
However, the employer must establish that there is evidence of that limitation. Furthermore, the employer should put some thought into how that medical information is going to be stored to ensure the privacy of the individual.
For further information, please contact:
Warwick Ryan, Partner
Phone: +61 2 9233 5544
Email: wpr@swaab.com.au
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