Australia: Can you or can you not? Directing an employee to attend a medical assessment

Assisted by Holly Pitt

Bottom line

It depends on the circumstances, but if an employer can prove that it is reasonable to assess an employee's work capacity or work health and safety risks - YES!

Why would you want an employee to undergo a medical assessment?

Often, after a workplace injury, or extended sick leave or workers compensation, employers may need to find out more about whether the employee is still able to perform their duties, or when the employee will be able to do that, and the accommodations that should or shouldn't be provided to an employee returning to work.

How can this cause problems?

Fundamentally, privacy.

Employees may, quite reasonably, be protective about their privacy, and a medical examination is likely to impinge on that. Some employees will suspect that their employer has an agenda (to terminate employment or get them to resign), or see the request or direction as discriminatory or otherwise unreasonable, and therefore resist attending the medical examination.

What does the law say?

The right to have an employee medically examined may arise from the terms of an employment contract.

Alternatively, as a general principle, an employer can give, and an employee must obey, a reasonable and lawful direction. The legal issue with a direction to attend a medical examination is whether the direction is reasonable, in light of circumstances such as those outlined above, and not capricious or over-bearing, or given because of some illegitimate hidden agenda.

Under work health and safety law, it's no secret that employers must provide a safe working environment for employees, so that may make the direction reasonable - in the right circumstances.

Where there are grounds for concern that someone may not be able to do their job, or may be at risk if they try to do so, then it is legitimate to obtain expert evidence (employers generally not being medically qualified so as to make a judgment on capacity or proneness to risk from medical causes).

Similarly, in the case of prolonged work on suitable duties, it may be reasonable to obtain an expert assessment of current and future capacity or risk, for general workforce planning purposes: will this person be able to perform their pre-injury duties any time soon, without undue risk?

Let's compare two different decisions:

In the case of Grant v BHP Coal Pty Ltd (No 2) (2015) the court held that a coal mine employer was within its rights to direct an employee to undergo a medical assessment. This was because the employer had reasonable health concerns, especially in a mining workplace, should that employee have returned to work when not medically fit to do so. The employee had injured his shoulder while working at the mine, and sustained subsequent injuries to his shoulder both inside and outside of work hours in the months following, before taking sick leave for nine months in respect of these injuries. The employee produced a medical certificate on his return that said he could return to normal duties however, the employer requested a medical examination in order to ascertain whether there would be any restrictions on the employee's work capacity. This was found to be within the employer's rights under relevant mining regulations, as the employer was entitled and expected to maintain a safety and health management system and could request health assessments periodically.

On the other hand, in Cole v PQ Australia Pty Ltd (2016) the employer directed Mr Cole (a packer) to undergo a medical assessment, despite no evidence to suggest that employee would be unable to perform at work. In this case the employee took one day's absence, and provided a medical certificate which mentioned depression. The employee had no history of excessive sick leave, and there was nothing to suggest an ongoing disability, but the employer directed him to undergo a medical examination. It was decided in this instance that the employer had no good reason to require medical examination, as there was no reasonable concern that the employee would be unable to perform his usual work safely, and the employee had already provided adequate information to support his absence.

What does this mean for you as an employer?

It means considering whether it is reasonable for you to direct an employee to attend a medical examination. You should consider if there is a genuine concern for that employee's health or about their ability to perform the inherent requirements of their role, and whether they might be at any risk.

If in doubt, get advice before you take any disciplinary or termination action when an employee refuses to attend an examination.

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.

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Authors
Lisa Qiu
Dominic Russell
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