Employers’ rights and obligations when determining fitness for work

Sometimes an employer may become concerned that an employee is physically unable to safely perform the requirements of their role, or that they are not coping with their job mentally. So, what happens if an employee does not want to undergo a medical examination which might enable the employer to reach an informed conclusion? Can an employer compel an employee to submit to an examination or divulge medical information?

In this article, we discuss the basics of fitness for work and examine a recent case which clarifies the extent of an employer’s rights in this situation.

The basics: duties and rights of employers

Employers have a legal obligation to take reasonable measures to ensure the health and safety of their workers, which may include taking proactive steps to ascertain an employee’s fitness for work. It is not always enough to wait for an employee to make a complaint or raise a concern.

In all states and territories, employees have a corresponding obligation to take reasonable care for their own health and safety and to cooperate with reasonable measures taken by their employer to protect health and safety at work.

The net result of this is that employers have the right to direct an employee to attend a medical examination to determine their fitness for work, but that right is not absolute or unlimited.

Taking a horse to water

There is an important legal distinction at the heart of this issue, which is often overlooked or misunderstood: an employer can direct an employee to attend a medical examination or provide medical information, but they can’t force them to consent to it; these are two separate issues. However, if an employee refuses to consent to a medical examination or to provide information which is reasonably necessary for an employer to discharge its duty of care, then the employer can take disciplinary action, which will often include termination.

Case example: the limits of an employer’s authority

In Naicker v Epworth Foundation [2017] FWC 4928, an employee claimed that she had been unfairly dismissed after she was terminated on numerous grounds, including refusal to disclose certain medical records. The employee, a nurse, took two weeks of annual leave to recover from stress related to an increased work load. This lead to concerns about her fitness for work and she was asked to produce a medical certificate stating that she was well enough to work before returning to her duties.

While off-duty the nurse delivered the medical certificate to HR in an intoxicated state. She was taken for alcohol testing (on site, at the hospital where she worked) out of concern for her wellbeing. Following this incident, the worker was directed to submit to independent medical examinations, and to disclose the results of the alcohol testing from the intoxication incident. The employee consented to the various examinations, but refused to consent to the disclosure of the alcohol testing results.

Deputy President Gostencnik ruled that the employer was entitled to direct the worker to undergo independent examinations and to rely on those reports, but it had no right to compel disclosure of the alcohol test results, or to rely on refusal to comply as a reason for termination. The employer in this case had sufficient evidence concerning fitness for work already, and the drunken incident occurred when the employee was off-duty, so she was effectively a private patient. The employee was validly dismissed for aggressive and inappropriate comments she made to an HR employee, but the FWC rejected the suggestion that she had also refused to comply with a lawful and reasonable direction in relation to the test results.

The upshot

If you think you need to direct an employee to disclose medical information or attend an examination to ascertain fitness for work, ask yourself:

  • what are the inherent requirements of the employee’s role?
  • what information will I need to disprove or confirm my suspicions about their fitness to safely perform those requirements?
  • do I have enough information available to me already, which is up to date and specific enough to address the requirements?
  • if not, what is the least invasive way to obtain relevant and reliable information (this is not necessarily easy, and judgement calls are necessary)?
  • have I clearly explained my concerns, legal obligations and the reasons for my request to the affected employee?
  • was the request made in a reasonable way (e.g. if the concerns relate to mental health, was the request delivered in a sensitive manner)?

If you ask yourself these questions, then you will be on the right track towards a good outcome, and remember that the legal standard is reasonableness, not perfection. Still, in particularly tricky cases, we recommend that you seek legal advice to navigate the finer points and minimise your liability.

If you have any queries or would like further information, please contact:

Joe Mullavey
M: 0416 794 061
E: jmullavey@pageseager.com.au

Published: 12 December 2017

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