Can my employer direct me to go to a Doctor?

Workers compensation laws are only one part of the three areas of law that govern injured workers. The two other areas are Industrial law and Work, Health and Safety laws.  All three areas have legislation and in the case of industrial law awards or agreements that have bearing on whether your employer can send you to a doctor for a review or not.

The first is the Industrial law legislation. For most people this is the federal Fair Work Act 1999 and their Enterprise Agreement.

In the Fair work Act it states (at division 7 Subdivision A: Paid personal leave) that an employee is entitled to 10 days personal leave (such as sick leave [at 96]). At subsection 107 it says you need to give notice of taking that leave and that you need to give evidence that satisfies a normal person. This is the clause that covers an employer’s insistence that you need a doctor’s certificate if you take sick leave (though it doesn’t say that explicitly).

In most awards there is a line that states the length of time you can have off before you go see a doctor to get a medical certificate (in general it is two or more days but it can be less or more depending on your award). The need for a doctor’s certificate (as an alternative to a docket that you bought cough syrup) is generally noted in company policy.

That particular scenario is generally accepted in Australia, if you get sick you need a doctor’s certificate but the instance is up to your employer.

The second way an employer can force you to go to a doctor is if they require you to do so when you first become employed. It is common in the public sector that your employment is subject to a medical confirmation that you are capable of doing the job (though this is rarely enforced in my experience). In this case the employer may send you to their doctor for a medical check-up. The doctor will generally send back a note to the employer that says simply yes or no rather than giving your employer a detailed medical report (but by some reports this is happening more and more).  Other employers will require you to provide the same medical letter from your own doctor before you can start.

Finally it accepted that an employer can send an employee to a doctor if they have reasonable concerns for that employer’s medical capacity to continue in their employment and there is a genuine indication of a need for it. This is most common if your employer is trying to medically retire you.

Work Health and Safety is much easier way to send an employer to an employer’s doctor. In the same vein as the paragraph above, the employer has to have reasonable concern that the employees’ health is going to have a serious impact on their capacity to be safe while at work, or that others may be at risk if the employee works.

It’s a common law right which also uses section 19 of the NSW Work Health & Safety Act 2011. “Primary duty of care”

“(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

 

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.”

So if an employer has a reasonable concern that an employee’s health may impact their capacity to be safe at work, they have a responsibility to confirm that this concern is warranted or not.

Where does workers compensation law fit in with this?

At section 119 of the Workplace Injury Management and Workers Compensation act 1998 it states:

(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(2) A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(3) If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination:

(a) the worker’s right to recover compensation under this Act with respect to the injury, or

(b) the worker’s right to the weekly payments,

This only affects workers with a workers compensation claim though.

If you are sent to a doctor by your employer, Have a read of the this Fact sheet from Maurice Blackburn Lawyers:

Dealing with directions to attend medical examinations

which has some great advice,