When can an employer direct an employee to have a medical examination?
Any request by an employer to an employee to have a medical examination has to be reasonable.
Reasonable means that the following questions have been adequately answered by the employer:
- Has the employee provided adequate medical information which explains absences and demonstrates fitness to perform duties?
- Is the industry or workplace particularly dangerous or risky?
- Are there legitimate concerns that the employee’s illness/injury may impact on others in the workplace?
- Does the employee agree to the assessment by the practitioner selected by the employer?
- Is the employee advised of the details of the conduct which led to the concerns that he was not fit for duty?
- Has the medical practitioner advised of the issues of concern and are those matters focused on the inherent requirements of the job? What information is proposed to be given to the medical practitioner about the actual job requirement?
- Has the employee been advised of the matters to be put before the medical practitioner for his assessment?
- Is the medical assessment truly aimed at determining, independently, whether Mr Cole was fit for work?
paraphrased from: Daniel Cole v PQ Australia Pty Ltd T/A PQ Australia  FWC 1166
With the court case cited above, the employee was asked to go to a medical examiner after only taking one day off – and bringing back a medical certificate. Obviously the courts found the employer was wrong but the principle that an employer can, under the above circumstances, ask an employee to go to a medical examination if that employer feels there is a need. It isn’t a free ticket, but it is still a right of the employer.
For example: if you have had a leg break and you work on a building site, it might be legitimate for your employer to send you to a medical examination once you are ready to return to work but, your doctor should first sign off on fitness to return – if they do this the employer should have enough information to return you to work.
Where the employers keep failing is the return to work process. The need to ensure “work health & safety” trumps the individual right to return is a phrase the IWSN hears to much when workers – not injured at work- are ready to return to that work place.
In one aspect the employer is right, WH&S is an overriding responsibility for an employer. In another aspect they are wrong. If you have already provided adequate medical information that explains your absence and confirms your fitness for duties then that should be adequate. return to work is a little bit more complicated than just that but the “fit for duties” argument rests on that statement only.
The fit between your recovery from injury and the workplace is another aspect that comes up occasionally, it isn’t as straight forward as the fit for duty argument. Though you may be fit for duty (admin assistant for example) the workplace may be particularly dangerous or risky (admin assistant on a demolition site for example) so fitness for your duties might not equate to fitness to attend that worksite.
If the employee provides adequate proof from their treating doctor that they are “fit for duties” then, in the vast majority of cases, this should be sufficient for the employer in most other cases an occupational therapist or a work health and safety expert can be called in to assess the “fit for worksite” issue as part of the return to work plan.
If you face this and are in any doubt then contact your union for further advice.