Legal risks around employee medical examinations

HC talks to one lawyer about how employee medical examinations can be made compulsory

Legal risks around employee medical examinations
There are a number of conditions under which referring an employee to an independent medical examination (IME) will be compulsory, according to Paul O’Halloran, Partner and accredited specialist (workplace relations) at FCB Workplace Law.
 
It will generally be compulsory when the employer has concerns that an employee cannot perform the inherent requirements of their job, or where they pose a safety risk to themselves or others at the workplace.
 
“For example, a common scenario is where an employee has sustained a physical injury that prevents them from undertaking manual tasks forming a major component of their job,” he said.
 
“Sadly, we are also seeing an increase in mental illness at work, so referral to an IME is a good idea if symptoms suggest severe depression, drug abuse or self-harm.”
 
O’Halloran added that there are a number of steps HR should take in order to reduce any legal risks.
 
Even though the right to refer an employee to an IME can be referenced to statutory work health and safety obligations, to avoid issues associated with an unwillingness to attend, it is a good idea to include contractual terms relating to IMEs in individual employment contracts and relevant policies.
 
“It is also essential that HR be able to articulate the ‘inherent requirements’ of the particular role held by the employee the subject of the IME,” he said.
 
“This is the criteria against which the doctor will determine the employee’s capacity and fitness to return to work and any reasonable adjustments HR will need to make to assist the employee.
 
“Managing ill or injured employees is one of the most complex areas for HR because it overlaps with numerous areas of law, including unfair dismissal, workers compensation, adverse action and discrimination.”
 
O’Halloran advised to not be afraid to refer employees to IMEs for this reason alone.
 
If an IME can be justified on health and safety grounds, employees are not immune from attendance merely because they may be exercising some other workplace right at the time, such as being absent on sick leave or workers compensation.
 
He also said employers should carefully choose the IME provider.
 
For instance, a suburban GP will rarely be adequate. A specialist IME provider should be used and detailed correspondence must be provided asking questions about the employee’s prognosis, diagnosis and capacity to undertake the inherent requirements of the role.
 
In some cases, legal privilege may be required over the IME report so that it is not disclosed to the employee or subject to disclosure in litigation. In these circumstances, engaging a lawyer before the IME will be necessary.
 
So what should be done if an employee refuses a medical examination?
 
“If done properly, referral to an IME should amount to a lawful and reasonable direction,” said O’Halloran.
 
Indeed, refusal to attend can be treated as a disciplinary matter.
 
“HR should provide the employee with an opportunity to respond to the reasons for non-compliance before considering the disciplinary outcome,” he said.
 
“Case law in this area confirms that dismissal may be appropriate in some cases.”
 
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