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
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.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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