Does medical clearance mean 'fit for work'?

But can a manager or employer request an employee provide additional evidence of their ability to return to their duties?

Karli Evans, a partner at Maddocks specialising in employment law and industrial relations, says that it’s not only a reasonable request but usually a very necessary one, particularly where an employee has been absent for some time, or the nature of their condition could be impacted by a return to work.

“Without a doubt,” explained Evans. “Because even if the employee says: ‘I’m not going to go and see another doctor because my GP has said it’s fine’ you need to say: ‘Well – we have a duty to ensure a safe system of work for you and our other employees. Your GP’s opinion is important, but not necessarily definitive on the issue of whether you are fit to perform your duties safely. We may need an independent specialist’s opinion. If you return to work without a comprehensive medical clearance, we take on a risk of you re-injuring or exacerbating a condition because we don’t know how it will interact with your day to day duties.’”

An employer has an overarching obligation to provide a safe working environment, and by not doing their due diligence (i.e. basing their assessment of an employee’s fitness to work on solid evidence) they risk incurring legal liability for any further sustained injuries.

Evans says that in more serious cases it’s vital that employers secure an independent, third party opinion, and not simply rely on the word of a patient’s GP (or even their specialist).

“We usually recommend to [an employer] that they direct the employee to take special leave on full pay – so there’s no disadvantage to them – until they can be properly assessed by not just a specialist, but depending on their medical condition, potentially an occupational therapist as well – who can look at the actual day-to-day duties within the team, or assess the work environment, to identify whether they are fit to return. And if they’re fit for partial duties, to identify what supports need to be put in place to ensure they don’t aggravate a condition.

What if an employee refuses a direction from their employer that they undergo a medical assessment?
Sometimes employees may be resistant to seeing another medical specialist with whom they’re unfamiliar – notwithstanding the fact that you’re keeping them on full pay until an independent medical opinion is secured.

However, an employer is well within their rights to insist on this step as a precondition to the employee returning to work, and even to eventually terminate an employee if they repeatedly refuse to cooperate with such a directive.

This has been confirmed in several recent cases, including Laviano v Fair Work Ombudsman [2017], where an employee’s general protections claim against the Fair Work Ombudsman (FWO) was dismissed. The employee refused to attend an independent medical examination 6 times, and failed to communicate with FWO during his extended absence from work due to a psychological condition. The Court found that FWO’s decision to dismiss the employee was not taken because of an unlawful reason.

In Grant v BHP Coal Pty Ltd [2017] the Full Court of the Federal Court found that a worker returning from a shoulder injury sustained on duty – who refused to attend a medical appointment nominated by his employer – was validly terminated. The Full Court found that the direction to see an independent medical specialist was consistent with the employer’s obligations under the Coal Mining Safety and Health Act 1999 (Qld), and that a failure to abide by this direction was reason enough to terminate the employment relationship.

If you are dealing with an uncooperative employee, stress the importance of this assessment to the employee’s wellbeing, and the nature of your duties to provide for a safe workplace. But make it clear that it is a non-negotiable precondition of re-entering work, and that there are consequences for refusing to comply with the lawful and reasonable direction.

An employee might be worried that any report regarding their condition may be worse than they think, and that this might mean they risk losing their job. Such reservations should be addressed on the basis that the employer will take all reasonable steps to accommodate the employee in a partial capacity, wherever that is feasible.

Under what conditions can you terminate an employee because of an acquired injury or illness?
Evans tells HRD that there is quite a high threshold for an employer to meet, when it comes to substantiating termination of an employee due to an injury or illness.

“It’s complex and the subject of extensive case law, but the long and the short of it is that you really need to have comprehensive medical reports that state the person is unable for the foreseeable-future to perform the ‘inherent requirements’ of the role, and that any adjustments required to enable them to return would be so onerous or financially expensive or otherwise unreasonable that you couldn’t be expected to do that as a business,” she added.

This, as Evans reveals, is quite a difficult threshold to reach because in most circumstances, as often the medical evidence will indicate that the employee’s current incapacity is not permanent, or they may be able to perform the role in a partial capacity, and there will be a practical way for the employee to continue to perform many of the essential requirements of the role, including with modifications (for example the employee working in a different team to a colleague or supervisor who is a source of potential exacerbation of a psychological condition). The Courts and Tribunals expect much of employers in terms of accommodating sick or injured workers.

A lot of attention is paid in litigation to the job descriptions specified in contracts of employment, as a key issue in any case will be identifying the essential aspects of the role in order to determine whether or not the core components could in fact be undertaken by the employee.

Practically speaking, this can present a problem for employers, as job descriptions are often not provided at all, or if they are, their content is vague and ambiguous and in practice they are often overlooked as a crucial component of the ‘documentary hygiene’ of an employment relationship. Consequently, much of Evans’ counsel in such matters is directed at identifying exactly what the role involves and reconciling this with (often) conflicting medical opinions, in conjunction with exploring options for potential accommodation of the afflicted employee.

“It’s rare to see a comprehensive job description, as no one pays any attention to job descriptions, and yet they’re scrutinised in these proceedings. Consequently, there’s often a need to call extensive sworn evidence to establish what are the crucial elements of a role, as distinct from what is desirable (or sometimes, from what’s been thrown together and rolled out just before the matter has gone before a court or tribunal) … So, it’s better when we get these cases to assist an employer to thoroughly evaluate: ‘What is the role?’ ‘What are the physical and/or psychological components?’ ‘What are the doctors saying?’ ‘What does your documentation say and where are the gaps?’ ‘What’s the best outcome here for both the business and the employee?’ Because if you do decide to terminate without a rigorous process and comprehensive medical evidence – there’s a significant risk they could be reinstated because you haven’t actually identified and addressed some of these key issues at the stage prior to termination.”

What if there are conflicting medical assessments?\
But what if there are conflicting accounts as to the nature of the injury? What if an employee’s own doctor says one thing and the independent specialist says another? What if two experts disagree?

This is a common issue and the approach to the treatment of such evidence has been the subject of considerable debate in recent Fair Work Commission decisions. In CSL Limited T/A CSL Behring v Chris Papaioannou [2018], the Full Bench stated that the tension between the previous Lion Dairy and Drinks Milk Ltd v Norman [2016] and Jetstar Airways Ltd v Neeteson-Lemkes [2013] (Jetstar) decisions was to be resolved in favour of the approach in Jetstar. That is, where considering a dismissal related to a person’s capacity, the

Fair Work Act requires FWC to consider and make findings as to whether the employee suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the FWC (whether conflicting or otherwise).

In the remitted proceeding of Papaioannou v CSL Limited T/A CSL Behring [2018], the FWC considered the two conflicting medical opinions and found that the reason for the employee’s dismissal was valid, as while the medical opinions differed on how long it would be until the employee could return to work, they were consistent in that it would be a period of at least six months. However, the dismissal was still found to be harsh, unjust or unreasonable because it prevented the employee from benefiting from a salary continuance plan under an enterprise agreement. The employee was reinstated to his role at CSL.

The cases highlight the complexity of dismissing an employee for inherent requirements where, as is often the case, the medical evidence is conflicting. Terminating an employee on the basis of an employer-funded report which conflicts with multiple treating doctor reports is unlikely to be successful. Where the medical evidence is inconsistent, an employer should seek to reconcile the opinions to the extent possible, prior to any termination. This may mean seeking further opinions or clarifying matters with treating doctors. Ultimately, the employer will bear the burden of demonstrating that the termination is supported on the medical evidence.

To ensure that your employees are fit to return to work, it’s important to be proactive, thorough, and diligent in monitoring with as much accuracy as possible their condition and how it relates to the work they’re tasked with performing.

Essentially, a one-line note from a GP just ain’t gonna cut it.