Prolonged and frequent employee absences can have a substantial impact on your organisation. But what do you do when an employee has been absent on numerous occasions, the medical certificate simply states the employee has a 'medical condition' and the employee doesn't provide further detail? In this article, we examine whether an employee can be required to attend a medical examination and what happens if they refuse.
The Legal Isues
The legal issues involved in following this course of action are:
- Disability discrimination.
- Occupational health and safety (OHS).
- The duty to follow lawful directions.
- Unfair and unlawful dismissal laws.
An employer can require an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties. It is a lawful and reasonable direction if there is some doubt about the employee's ability to perform his or her duties. It cannot be a lawful and reasonable direction if it is an exercise in intimidating the employee or if there is no reasonable basis for doubting the employee's fitness.
It is after all essential that an employer meets its occupational health and safety obligations to ensure that the workplace is safe for its employees. Where there is doubt about an employee's fitness, then an employer's OHS duties arise.
What Role Does Disability Discrimination Law Play Here?
An employer may require a medical examination because there is some doubt about an employee's fitness. It is consistent with disability discrimination laws to ensure that the workplace is suitable for the employee, and therefore if there is a disability issue the employer may be able to reasonably adjust the workplace to suit the employee's condition. In addition, it is not unlawful to discriminate against an employee on the basis of their disability if that disability prevents the employee from carrying out the essential requirements of their work.
So to direct a medical examination in these circumstances is reasonable and not unlawful, as it is based on a genuine doubt about the employee's abilities. There is no detriment suffered by the employee if the direction is reasonable and lawful. Nor will this treatment of the employee be less favourable treatment than that given to an employee without the disability.
What To Do To Ensure A Medical Examination Is A Reasonable Request/Direction
It is a two fold requirement: employers must have a genuine doubt about the employee's fitness and the employer must set reasonable terms under which the medical examination will take place.
Genuine doubt about fitness arises, for instance, through:
- Frequent, lengthy or unexplained absences.
- An apparent inability to perform the work.
- Where the medical condition is known (for example, a back condition) and the employer has concern that the employee's work may worsen the injury.
- Inconsistencies in information about the employee's state of health.
- Genuine concerns that the health of the employee will impact on other employees.
The terms of the medical examination will be reasonable if:
- The practitioner conducting the medical examination is given reasonable information about the work performed by the employee.
- The focus of the examination is on the essential requirements of the job and/or where the practitioner is requested to take account of the OHS obligations of the employer.
- The employee understands the reasons for the medical examination.
- Privacy and confidentiality is maintained so far as possible, except that the employer is entitled to know the medical outcomes.
What If The Employee Refuses?
If the request is reasonable then the employee is refusing to perform a lawful and reasonable direction. In these circumstances, after giving the employee an opportunity to respond or to explain why they refuse to attend, it would be lawful to dismiss the employee.
What Does The Employer Do With The Expert's Opinion?
Often the problem with a medical examination is that the information or opinion provided by the medical expert must be followed by the employer. For example, the employee may be fit for work contrary to the initial views of the employer. Alternatively, the medical expert may suggest modifications to or assistance with the employee's tasks or that reduced hours would allow the employee to perform the tasks.
Therefore there are risks in asking for a medical opinion in that the employer may not like the answer.
If the expert opinion concludes that the employee cannot perform the essential requirements of their job, then it is probably lawful to dismiss the employee. However, the employer may need to balance the expert's opinion against the medical opinion of the employee's treating practitioner. If they contradict each other, then the employer will have to make a sound judgment about whose opinion they should follow.
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