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6 reasons for requesting medical information from a worker

By Jeff Salton on February 12th, 2018

 

One of the trickiest aspects of running a business is managing ill or injured employees, which can be fraught with legal and commercial difficulties if you don’t get it right.

Muck it up and your business can be hit with any number of legal actions (dependent on qualifying factors), such as claims of:

  • unfair dismissal;
  • adverse action;
  • discrimination;
  • a health and safety breach; and
  • a breach of contract.

Kelly Godfrey, Principal Solicitor at Employment Lawyers Australia, says it is extremely important that you stay on top of absences and carefully manage them to avoid the legal risks and expose your business to prolonged disruption.

She says it’s tough when one of your only avenues on gauging whether workers’ absences are legitimate when often medical certificates provided by an employee’s treating doctor are vague and unhelpful.

“They usually give no clear indication of the cause of the employee’s illness or likely recovery time. Employees are often reluctant to volunteer additional information,” she says.

However, you are able to direct an employee who has been absent due to illness to:

  • provide additional information; and/or
  • be independently medically examined to check whether the employee is able to safely undertake the inherent requirements of their position.

“It is helpful to include clauses in employees’ employment contracts that stipulate this,” she advises.

6 legitimate reasons for requesting medical information

There must be a legitimate basis for requesting the further medical information, such as:

  • to comply with obligations under health and safety laws;
  • where there are lengthy or unexplained absences;
  • where there is little or no information to explain the reasons for the employee’s absence from work;
  • where there is a concern that the nature or extent of the injury will result in the work not being performed safely;
  • where there is inconsistency in the medical reports provided; or
  • where the employee is observed to be behaving in such a way that the business has concerns for the employee’s health.

What if the employee refuses?

If an employee is given a lawful and reasonable direction to attend an independent medical examination and refuses to comply, they can be performance-managed and issued with a warning.

If the refusal continues, the employee may be able to be dismissed, provided a procedurally fair process has been followed, Kelly says.

“It is important to ensure any independent medical examination of an employee is thorough and provides sufficient information on the employee’s medical condition,” she adds.

Information should include:

  • the prognosis;
  • whether the employee can safely perform the inherent requirements of their position;
  • if the employee cannot currently perform the inherent requirements of their position, whether there are any reasonable adjustments the employer could make to the workplace to enable the employee to perform their duties in a safe manner; and
  • how long these reasonable adjustments will be required.

An employee’s consent will be required to enable the doctor to release any information to the business on the employee’s medical condition.

The recently updated Personal Leave chapter in the Employment Law Practical Handbook has more information you can use to tackle the problem of absenteeism in your workplace, including many examples of how to address all the different types of leave available to workers and a record of personal leave template you can download.
Subscribe today to take full advantage of the comprehensive handbook, written in plain English by employment law experts.

 





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