As an employer, it is your responsibility to ensure the health and safety of your employees. For instance, employees can suffer from illnesses and injuries that can impact their ability to work. Therefore, you may require your employees to have a medical examination. This article will discuss employer obligations concerning employee safety and how you can direct employees to undergo medical examinations.
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What Are the Employer’s Obligations?
Work, health and safety legislation obliges employers to ensure the safety of employees. In New South Wales, employers have the primary duty of care for their workers under the Work Health and Safety Act. So, they must ensure their workers’ health and safety as much as reasonably practicable.
Therefore, you may want your employee to undertake a medical examination when they take extended sick leave or suffer an injury to ensure it is safe for them to work.
How Can an Employer Direct Employees to Undergo a Medical Examination?
There are many ways that employers can require their employees to undergo a medical evaluation. We explore some of these means below.
An Express Right or Term
An express right or term in an employment contract or enterprise agreement may allow employers to require a medical examination. This can include:
- an express right, which is the most straightforward approach to requiring a medical examination; or
- ensuring your contract outlines the particular circumstances under which this examination is allowed.
An Express Right in Legislation
As an employer, you may be able to direct your employees to undergo medical examinations per an express right embedded within the legislation that applies to an industry or sector.
Continue reading this article below the formThe Employer’s Request
As an employer, you can request your employee to take a medical examination. However, the employee has the right to decline this request or agree.
A Lawful and Reasonable Directive.
Employers have the right to give a lawful and reasonable directive. Furthermore, case law has established that an employer has the right to request a medical examination of an employee if there is a genuine indication of the need for the examination, and it is reasonable for the employer to make such a request. Some factors considered to discern whether an examination is reasonable include:
- whether there is a genuine indication of the need, e.g. prolonged absences from work or absences without explanation;
- whether the employer has legitimate concerns about the employee’s injury or illness’s impact on others;
- whether the industry or workplace is particularly dangerous;
- whether the medical assessment aims to determine whether the employee was fit for work; and
- failing or refusing to follow a lawful and reasonable direction could result in disciplinary action.
Therefore, requiring an employee to take a medical examination is doable through any of the above methods. However, there are some considerations to consider when requiring a medical exam.
Considerations for the Medical Examination
You can ask your employee to go to an independent medical examiner that can independently review your injury and evaluate whether you are fit for work. When engaging this examiner, consider what:
- type of medical practitioner to use (what is the employee’s injury and who has the most knowledge in reviewing this); and
- information do you need to share with the practitioner to evaluate the employee accurately.
It is worth writing a letter with what you require from the medical practitioner. So, consider what questions you need the answers to. Additionally, let the practitioner know the inherent requirements of the role to assess whether the employee is fit for work. For example, you might consider:
- what duties does the employee perform;
- what tasks must they complete in an emergency or high-stress situation; and
- the circumstances in which they work.
Implications for Employers
When requiring employees to undergo medical examinations, there are some procedures that you should follow. For example, you should:
- organise a medical examination as soon as possible;
- be transparent with the employee i.e. let them know the steps taken, what you are informing the practitioner of and the outcomes of the examination; and
- maintain confidentiality since illnesses and injuries are likely sensitive topics.
Key Takeaways
Employers can require employees to have medical examinations through various avenues. You can find these avenues in your employment contracts, enterprise agreements or legislation relevant to your industry. In addition, employers can ask employees or direct them through a lawful and reasonable directive.
If you need assistance in drafting your employment contract to include these terms, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You can require an employee to undergo a medical examination in several ways. For instance through; an express term in an employment contract or enterprise agreement, the legislation relevant to your industry, by asking the employee and their agreement or through a lawful and reasonable direction.
Employers must follow specific steps to prepare the medical practitioner who will evaluate their employee. Firstly, you must inform the practitioner of the inherent requirement of the job and the general duties your employees must maintain. Then, allow your employee to tell them the medical history and work history they believe are relevant. Finally, ensure that the practitioner is only testing for pertinent conditions for the performance of the role.
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