Can your employer ask personal questions about your health?

B2B Editor15 August 2018

Can your employer ask personal questions about your health?

You have submitted a job application and been in contact with the HR Manger who has scheduled a job interview.

At the interview, your impression is that it is going well. But then they say, “Before we move forward, we would like you to visit our doctor for a standard medical check-up. Is this okay with you?”

Understandably, you are a little taken aback by this question.

You think to yourself: “Are potential employers allowed to ask you to see a doctor?”

The short answer is yes.

Employers can collect health information about their employees, or prospective employees, for a legitimate purpose. This could include going to a doctor.

So what rules apply to employers who gather this sort of information about their employees, and what are the rules about employers using that information?

First, what information are employers allowed to gather?

As always, it depends on the circumstances. Employers should conduct a “health analysis” of each position and make clear the purpose of their requirement for personal health information.

There may be certain “inherent requirements” of the job which eliminate a person with a particular medical condition. However, employers need to ensure that the inherent requirements of the position are reasonable and accurate, and ensure that they do not disproportionately exclude people with a disability.

For example, while it may not necessarily be an inherent requirement of a general office role, having reasonable hearing is likely to be an inherent requirement for a role in a call centre.

In the case of pre-employment medical assessments, medical information which is gathered either by the potential employer through questioning, or by a doctor in a medical assessment, should be tailored to ensuring they are fit to work in a particular position and fulfil the inherent requirements of their job.

So what does this mean?

A standard pre-employment medical assessment includes a questionnaire about an employee’s psychical and mental health. Usually, it will include tests for blood pressure, vision, height, weight and urinalysis. Depending on the type of organisation or the expectations of the job, a doctor may conduct further tests for peripheral vision, respiratory, cardiovascular, abdominal, skin, nervous system, oral and ear examination, and a musculoskeletal overview. This will largely depend on the medical and work history of the employee.

These tests ensure that, if there are any existing health conditions, they are identified before the commencement of the job.

It is unlawful for either the employer, or the medical practitioner conducting the assessment, to obtain information relating to an employee’s health and disabilities in an invasive manner, or in a manner that unduly impacts on their privacy.

Second, how can employers use private medical information?

Private medical information collected by the employer can only be used for the purpose it was properly collected for. Furthermore, the information is protected against improper access or disclosure to any unauthorised individuals.

The employer also must not use the information for any discriminatory purposes.

Importantly, it would be unlawful for any employer to withdraw an offer of employment on the basis of any private medical information they have gathered about a prospective employee unless they could demonstrate the employee was unable to perform the inherent requirements of the job, or if they could demonstrate that it would impose an unjustifiable hardship on the employer.

If, despite a mental, physical or emotional condition, the employee is able to carry out the inherent requirements of a job, any employer who withdraws an offer of employment on the basis of that condition may be liable under anti-discrimination laws (as stated in the Disability Discrimination Act 1992 (Cth), s.21A and 21B)

Finally, can an employee decline to provide personal health information to their employer when they ask?

Employees may choose not to disclose their pre-existing condition or disability on a health questionnaire and/or assessment because:

  • they can meet the inherent requirements of the position without having to disclose their disability;
  • their disability may be in remission and not considered relevant to the process;
  • they may not consider their condition as a disability; or
  • the disability information may not be requested in the questionnaire or in the assessment.

However, if an employee is not truthful when asked directly, this may breach their employment contract and could affect their entitlement to superannuation, insurance or workers compensation. There is an implied obligation that an employee truthfully answers questions from the employer within the scope of their employment. Any breach of this obligation could constitute a breach of the employment contract and could justify termination of employment.

Additionally, if a job applicant has disclosed an existing medical condition which highlights the need for work-related adjustments in the workplace, it is their responsibility to discuss this either in the interview, when the position is offered or when their employment commences.

Bill McCarthy is a Special Counsel at BAL Lawyers in the Litigation and Dispute Resolution team. He thanks his colleague Robert Allen for his assistance in preparing this article.

Original Article published by BAL Lawyers on the RiotACT.

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