Published: 05 October 2012
Author: Penny Savidis
My employer requires a medical assessment. What are my rights as the employee?
According to recent media reports, injured workers are increasingly being forced to undergo unreasonable medical examinations, with their employers sometimes even attending medical appointments with them.
So what are the rights and obligations of injured employees who are asked to submit to medical testing?
On the one hand, 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. On the other hand, employees have a legitimate right to privacy and 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 particular facts.
All employees are obliged to follow the lawful and reasonable directions of their employer. However, even if it is not unlawful for an employer to direct their employee to undergo medical examination, it may still be unreasonable. For example, an employee may only have been sick for a short period of time, or may have already given their employer adequate information about their impairment.
If it is both lawful and reasonable for an employer to direct an employee to attend medical examination, it doesn't always follow that the particular questions that an employer wants to ask a medical practitioner are justifiable. Workers should take care to ensure that their employers only ask such questions of treating doctors or independent experts as are reasonable in the circumstances. It is unreasonable for an employer to embark on a "fishing expedition" by asking unnecessarily broad questions of medical practitioners, such as asking for a complete medical history when the issue is more confined.
An employer who directs an employee to see the company doctor or to endure independent medical examination should cover the cost of such examination.
It is certainly not reasonable for employers to pressure workers into taking along a company representative to medical appointments with them.
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 (to the extent 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 for 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.
Injured or ill employees who are terminated from their employment may also have unfair dismissal rights. There may not have been a valid reason to dismiss them based on their impairment, or the company may have failed to follow a fair process in how it dismissed them. Employees who are denied the opportunity to comment about any medical report obtained by their employers, or to provide more detailed information about their condition or prognosis, will generally be 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 particular workplace.
Employees who are treated adversely 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. It is generally a defence to such claims if an employer can 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 ascertain the position or role performed by the employee. This does not always mean just the position description, but also what actual tasks or duties the employee was undertaking. An employee in such a situation can sometimes argue that the employer should have better accommodated his/her disability, by making reasonable adjustments to the workplace to enable her/him to perform the requirements of the position.
It may also be unlawful to terminate an employee's employment if s/he has 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 three months or a total absence of less than three months within a twelve 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 advice.