By Kelly Godfrey

Managing an ill or injured worker is fraught with legal and commercial difficulties if you do not manage it the right way. Get it wrong 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.

As a business-owner or senior manager, 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.

Requesting medical information from an employee

Due to privacy considerations, often medical certificates provided by the worker’s treating doctor are vague and unhelpful. They usually give no clear indication of the cause of the worker’s illness or likely recovery time – and workers are usually reluctant to volunteer additional information.

However, if you are unsatisfied with the information you have received, 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 can safely undertake the inherent requirements of their position.

It is helpful to include clauses in workers’ employment contracts that stipulate this.

Case law example

In Australian and International Pilots Association v Qantas Airways Ltd (2014), the Federal Court held that an employer has an implied contractual right to require an employee to provide medical evidence of their ability to perform their work. This arises partly as a consequence of an employer’s absolute obligation to ensure the health, welfare and safety of employees at work under health and safety legislation.

In addition, the Federal Court held that an employer is entitled to this information to enable it to make business arrangements to adjust for the impact that sick leave has on the business.

6 legitimate reasons for requesting medical information

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

1. To comply with obligations under health and safety laws.
2. Where there are lengthy or unexplained absences.
3. Where there is little or no information to explain the reasons for the employee’s absence from work.
4. Where there is a concern that the nature or extent of the injury will result in the work not being performed safely.
5. Where there is inconsistency in the medical reports provided.
6. 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 worker refuses?

If a worker 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 worker may be able to be dismissed, provided a procedurally fair process has been followed.

Independent medical examination

It is important to ensure any independent medical examination of a worker is thorough and provides sufficient information on the worker’s medical condition, such as advising on:

• 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.

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

For many employers, gone are the days where you could simply ring a worker directly and ask them what’s wrong and when they’re coming back to work.

Today, there are policies and processes to follow. Getting them wrong can expose your businesses to a range of penalties from adverse action claims, wrongful dismissal, workplace bullying and harassment, privacy breaches, the list goes on.