Australia: Precision is the key to permissible health assessments

Recent developments in the area of medical assessments should serve as a warning to all employers about how they approach the obtaining of health information to manage employment risks.

The Fair Work Commission recently held in Transport Workers' Union of Australia v Cement Australia Pty Ltd¹that the mere fact of increased risk in a particular working environment does not give employers the ability to direct employees to have medical assessments as of right. Although this case does not contradict the existing principle that a lawful and reasonable direction can be issued from an employer to an employee to attend a medical assessment on proper grounds, the scope of those grounds have been limitedby the decision in this case.

It had earlier been held by the Fair Work Commission that it is a lawful and reasonable direction to send a specific employee to a company appointed physician for the purposes of assessing whether or not they are capable of performing the inherent requirements of their position. This was distinguished in the circumstances of this new decision, where the assessments were to be made across a whole sector of the workforce as part of a preventative measure to address high rates ofinjury in a particular type of role.

The distinction ultimately related to the purpose of the tests. It is a matter of settled law that employees need to be able to perform the inherent requirements of their position safely, however, the test in this casewas not whether or not they could perform their duties, but as to whether or not they bore more significant risks in those duties due to their general health and lifestyle. It was communicated to the employees, and was true as a matter of fact from the tests, that the results of those tests would not be used to assess task capability, but just the health of employees to assist them in self-managing their health in the hope of reducing instances of injury.

The program was, in fact, specifically created as aresult of fears that testing in relation to inherent requirements could result in some employees losing their jobs. The recommendations from the assessments were only likely to result in recommendations to the employees to alter particular lifestyle factors or take part in voluntary programs. They would not lead to significantly amended systems of work or otherwise directly link to the perceived risk of musculoskeletal injury.

It should be noted that significant considerations taken into account by the Commission included the fact that an existing compulsory assessment scheme existed under relevant safety legislation, and that the assessments themselves were non-specific. Because of the lessened need to obtain these assessments, and the general nature of the data obtained, the Commission considered the perceived need for the assessments insufficient to counterbalance the employees' right to privacy. The direction by the employer to participate in the assessments was held to be beyond the scope of a lawful and reasonable direction.

For employers, this does not mean the end of health assessments, but it does provide a number of guidelines as to how to structure the obtaining of health information:

• Health assessments should be structured to provide informationon the performance of the inherent requirements of a position;
• If a health assessment is to be arranged for more than a single employee, such as a whole sector of the workforce, it should be clearly linked to a concrete element of their shared duties;
• Consideration should be given as to whether or not there are less invasive ways to obtain the health information;
• Assessments should seek to obtain detailed, highly specific information rather than a general assessment of fitness or wellbeing;
• If an existing regulatory scheme exists, consideration should be given to whether or not a further assessment is required, particularly when considering what the inherent requirements of a position are;
• Finally, it is critical that a genuine need to obtain the information exists, not merely a preference or a "fishing expedition" as to possible health issues, even if this is motivated by the desire to protect employees.

Kaden Boriss has a significant degree of experience in helping to draft and review assessment protocols relating to the inherent requirements of a position or positions. If you are considering implementing assessments, or need to review your existing assessment arrangements in light of this decision, please feel free to contact us if you require advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.