When can you direct employ­ees to under­go a med­ical examination?

In Brief

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 employ­ee 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 others.

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.