Who’s right on health checks?

RECENT comments by Justice Madgwick in the Federal Court have suggested that employers have a right to require employees to undergo medical examinations, even where there is no express contractual right in the employment contract.

In Blackadder v Ramsey Butchering Services Pty Ltd, Justice Madgwick stated that an employer has strict obligations under safety legislation to ensure the safety and well-being of its employees and that, to ensure compliance with those obligations, it is essential that an employer be able where necessary:

p to require an employee to furnish particulars and/or medical evidence showing that the employee is fit to continue to undertake duties; and

p require an employee, on reasonable terms, to attend a medical examination to confirm their fitness.

It was indicated that this was particularly relevant in dangerous work environments.

Importantly, Justice Madgwick assumed that these terms should be implied by law into contracts of employment.

As a cautionary note, the right of an employer to require medical examinations is not unfettered. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact, as will the question of what are reasonable terms for the undertaking of the medical examination.

In the Blackadder case, Justice Madgwick formed the view that the employer in that case did not have a bona fide concern for the employee’s (or other employees’) safety, and that in those circumstances it was reasonable for the employee to refuse to attend the medical examination. However, despite the history between the employer and the employee, a bona fide concern could still arise in the future.

Of course, requiring employees to undergo medical testing is only one part of the system of managing ill or injured workers in the workplace. Employers will always have to balance their occupational safety and health obligations with an employee’s rights. Importantly, the fact that an employee may have an injury or illness that restricts their ability to work does not mean that an employer has a right to automatically terminate that employee’s employment.

If the relevant injury is subject to Workers’ Compensation payments, an employer must continue to fulfil all of their obligations under Workers’ Compensation legislation. But in any event, ‘fairness’ requires that an employer undertake all reasonable steps to try and continue the employment of an ill or injured worker, including consideration of:

p job redesign;

p redeployment; or

p retraining.

Employers must only act on objective medical evidence, not assumptions, and consider any issues raised by the employee to manage their illness or injury, and ongoing employment.

Given the ongoing public debate surrounding occupational safety and health, including increased penalties and personal liability, the comments of Justice Madgwick are a timely reminder that employers need to consider and understand their options for managing occupational safety and health issues in the workplace, including ill or injured workers.

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