Independent medical examinations

Managing sick workers can be one of the most complex circumstances to deal with in the workplace

BY Contributor 10 Dec 2018

Managing sick workers can be one of the most complex circumstances to deal with in the workplace

Managing ill and injured employees – and, in particular, obtaining enough information so they can be properly managed – can be one of the most complex circumstances to deal with in the workplace. Each case is unique in terms of its facts (including the particular circumstances of the employee) and there are many competing considerations that need to be considered – and navigated! An employer should review any and all relevant policies, procedures and employment contracts, plus any applicable enterprise agreements and modern awards, to determine what parameters, if any, there are around managing ill and injured employees.

What can you require an employee to attend an independent medical examination?

There are four ways an employer can do so:

Where there is an express right to require an employee to do so, either in the employee’s employment contract, in an applicable enterprise agreement, or in a policy or procedure.
If such a right exists, this is generally the most straightforward approach for an employer.
Where there is an express right in specific legislation that applies to the industry or sector (eg the coal mining industry and public sector).
When the employer requests the employee to do so, and the employee agrees; and
By issuing a lawful and reasonable direction to the employee.

What is a lawful and reasonable direction?

An employer has a common law right to give a lawful and reasonable direction to an employee.

However, disciplinary action, including termination of employment, for failing to comply with a direction, such as to attend a medical examination, will only be enforceable if the direction is found to be lawful and reasonable in the circumstances.

When might a direction to attend a medical examination be lawful and reasonable?

A direction to an employee requiring them to attend a medical examination might be lawful and reasonable where:

Medical certificates provided by the employee are vague or lacking in detail.
There has been a lengthy unexplained absence from work.
The employee has not offered any information about prognosis; and
There is conflicting medical evidence.

An employer should remember that a direction to attend a medical examination must relate to an employee’s fitness for work, usually in the context of a current medical condition. This means that, for example, a direction requiring an employee to attend a psychiatric assessment is likely to be found to be unreasonable and unlawful if the employee is suffering from a physical, not a psychiatric, injury.

Fast fact For seven in 10 companies in Australia, the cut-o age for candidates is 50, even though setting an age limit for job applicants is against the law in this country, according to a survey by the Australian Human Rights Commission.

Shannon Chapman
Counsel
ASHURST