According to media reports, injured workers are increasingly being forced to undergo irrational medical examinations. Sometimes their employers even attending medical appointments with them.
So, what are your rights and obligations as an injured employee who is asked to undergo a medical examination?
Yes, employers have a right and a duty to ensure that employees can safely perform their jobs without the risk of injury to themselves or to others. But employees also have a right to not to face unnecessary scrutiny because they are injured or ill.
Whether an employer can legitimately direct an employee to attend medical testing will depend on the following facts.
All employees are obliged to follow the lawful and reasonable directions of their employer. However, even though it is not unlawful for an employer to request their employee to undergo medical examination, it must not be unreasonable either.
What can be deemed unreasonable? If an employee has only been sick for a short period of time or they have already given their employer adequate information about their impairment.
If the request from the employer is both lawful and reasonable, then the employee still should be mindful that the employer cannot ask questions of the medical practitioner that are unreasonable or irrelevant. Such as, asking for a complete medical history when the issue is confined to a specific body part.
If the employer requests a medical examination to be undertaken, then it they must also cover all costs associated with it.
It is unreasonable for an employer to pressure an employee to take a company representative along with them to any medical appointments.
For employees who have WorkCover claims, under the Accident Compensation Act, employers have an obligation to provide them with their pre-injury work or suitable work for 12 months (given that it is reasonable for them to do so). Often employers simply dismiss employees at the end of the 12 month period, without properly assessing their capacity to work.
Injured or ill employees who are terminated from their employment may have rights under the discriminatory conduct provisions of the Accident Compensation Act, if a substantial reason for their termination is because the employee gave notice of an injury, took steps to pursue a WorkCover claim, or gave or attempted to give a WorkCover claim to their employer.
Employees who are denied the opportunity to comment on any medical report obtained by their employers, or to provide more detailed information about their condition or prognosis, are generally treated unfairly and this may be a basis for an unfair dismissal claim.
Sometimes employers “play doctor” and make their own medical judgments about workers without checking the current situation with a qualified practitioner. On the flipside, employers may blindly rely on medical opinion without adequately making their own decision based on the requirements of the workplace.
Employees who are treated unfavourably during employment, or who are dismissed, because of their impairment may also have the right to make a general protections claim with Fair Work Australia or a discrimination claim under state or Federal anti-discrimination laws. An employer must establish that the employee cannot perform the “inherent requirements” of his/her position, also known as the “general and reasonable requirements of the employment” in some contexts. The inherent or general and reasonable requirements of a position may be vary from case to case. Often the starting point is to determine the position or role performed by the employee. This is not limited to the position description, but includes actual tasks or duties the employee was undertaking. An employee in such a situation can sometimes argue that the employer should have better accommodated their disability, by making reasonable adjustments to the workplace to enable them to perform the requirements of the position.
It may also be unlawful to terminate an employee, if they have been temporarily absent from work because of illness or injury. This is defined in the Fair Work Regulations as an injury or illness extending less than 3 months or a total absence of less than 3 months within a 12 month period, for which the employee has not been on paid personal/carer’s leave.
Employees who are absent from work because they are injured or ill should advise their employer of their absence. Under the National Employment Standards, employees must give such notice as soon as practicable and must also advise their employers of the expected length of the absence. Employees may also need to provide evidence of their absence if required. Individual employment contracts, modern awards and enterprise agreements may also prescribe terms relating to notice of evidence requirements regarding personal leave.
Employees who are feeling unduly harassed or discriminated against in relation to their impairments should seek appropriate legal advice.