Do employers have the right to direct employees to provide further medical information?

In cases of an employee’s extended absence due to illness or injury, be it personal or workplace related, employers may want to get more information about whether the worker is able to still perform their role, when they will be able to return or what accommodation might be necessary to support them. If so, can an employer require the employee to provide further medical information or attend a medical examination? Or can the employee claim this impinges on their privacy?

On 23 May 2017, Renae Harding and Gemma Little of Jackson McDonald advised in their article ‘When can you direct an employee to attend a medical assessment?’ that employers may have a ‘right’ “as an express term in an employment contract, workplace agreement, company policy or under legislation”. Harding and Little also noted that “an employer may also have a common law right to direct an employee to provide further medical information or attend a medical assessment if the direction is lawful and reasonable”. However they counter, “whether the direction is lawful and reasonable is a question of fact and depends on the particular circumstances”.

Illegitimate hidden agenda

Stephen Booth, Lisa Qiu and Dominic Russell of Coleman Greig Lawyers noted in their article of 20 June 2017, ‘Can you or can you not? Directing an employee to attend a medical assessment’, that “the legal issue with a direction to attend a medical examination is whether the direction is reasonable”. It is important, they advised, that the direction is “not capricious or over-bearing, or given because of some illegitimate hidden agenda”, like wanting to terminate the employee’s employment or force them to resign.

Inherent requirements of the job

Maurice Blackburn Lawyers Emeline Gaske’s article in 2013, ‘Dealing with directions to attend medical examinations’, lists factors to consider in determining whether or not a particular proposed medical examination is reasonable, such as:

• “whether the medical examination is specific and focused on the inherent requirements of the job (or is it a fishing expedition?);
• whether the medical practitioner is apprised of the employee’s actual job requirements (as opposed to, for example, a generic position description); and
• whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.”

Further explanation as to what circumstance would favour the employer’s direction to gather more medical information “as being lawful and reasonable” in Harding and Little’s article covers:

• “Where the employer has statutory occupational health and safety obligations;
• Where an employee is absent for an extended period;
• Where the medical information provided is insufficient;
• Where the employee works in a high-risk role or workplace;
• Where the medical evidence is conflicting or inexplicably changes; and
• Where the employee’s absence affects the employer’s ability to plan and manage its business”.

Genuine indication of a need

Gaske goes one step further and reports not only must it be reasonable for the employer to make such a request, there has to be a genuine indication of a need, such as circumstances like:

• “whether the employee has had prolonged and/or unexplained absences from work;
• the nature and content of medical information already provided by the employee to the employer — in particular, if the employee has already provided medical information and whether it addresses issues of fitness to perform duties;
• whether there are unexplained inconsistencies in the employee’s medical certifications or absences;
• the nature of the employee’s workplace, including the type of work performed and the degree of risk associated with that type of work; and
• whether the employer has legitimate concerns that the illness or injury will impact on others in the workplace.”

Strictly comply with the law

Gaske opines employers should be “careful to strictly comply with the law”. As “management of ill and injured employees is a complicated area that is fraught with risk”, Harding & Little caution the employer can be open to “unfair dismissal, adverse action, discrimination, or breach of contract, award or agreement”. Finally Booth, Qiu and Russell counsel employers “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”.

Take away for employers

Bottom line is employers should have sound policies and procedures that underline any consideration of directing an employee to provide medical evidence.

Even better is a proactive approach to prevention of injury and sound absence management that includes a ‘Recover at Work’ focus. The latter means in the event of illness or injury, the potential for the employer to need to seek a legal resolution is greatly diminished, and the workforce feels valued and supported.

Image credit: ©stock.adobe.com/au/VectorShots

Originally published here.