When can you require an employee to undergo an independent medical examination?

by Shannon Chapman, Counsel, Ashurst

Managing ill and injured employees – and in particular, obtaining enough information so that they can be properly managed – can be one of the most complex circumstances to deal with in the workplace.  

Each case is unique in terms of its facts (including the particular circumstances of the employee) and there are many competing considerations that need to be considered – and navigated! 

An employer should review any and all relevant policies, procedures and employment contracts, plus any applicable enterprise agreements and modern awards, to determine what parameters, if any, there are around managing ill and injured employees.

When can you require an employee to attend an independent medical examination?
There are four ways an employer can do so:

1. 1. 1. Where there is an express right to require an employee to do so, either in the employee's employment contract, in an applicable enterprise agreement, or in a policy or procedure. 

If such a right exists, this is generally the most straightforward approach for an employer.

1. 1. 2. Where there is an express right in specific legislation that applies to the industry or sector (eg coal mining industry and public sector).
      3. When the employer requests the employee to do so, and the employee agrees; and
      4. By issuing a lawful and reasonable direction to the employee.

What is a lawful and reasonable direction?
An employer has a common law right to give a lawful and reasonable direction to an employee.

However, disciplinary action, including termination of employment, for failing to comply with a direction, such as to attend a medical examination, will only be enforceable if the direction is found to be lawful and reasonable in the circumstances.

When might a direction to attend a medical examination be lawful and reasonable?
A direction to an employee requiring them to attend a medical examination might be lawful and reasonable where:

1. 1. 1. Medical certificates provided by the employee are vague or lacking in detail.
      2. There has been a lengthy unexplained absence from work.
      3. The employee has not offered any information about prognosis; and
      4. There is conflicting medical evidence.

An employer should remember that a direction to attend a medical examination must relate to an employee's fitness for work, usually in the context of a current medical condition.  This means that, for example, a direction requiring an employee to attend a psychiatric assessment is likely to be found to be unreasonable and unlawful if the employee is suffering from a physical, not a psychiatric, injury.

Briefing the medical expert
Employers should think carefully about what information they need from the medical expert and remember that the purpose of the medical examination is to assess the employee's fitness for work.

As a starting point, the employer should consider:

1. 1. 1. What type of medical expert to engage (eg, a company doctor, a general practitioner, a specialist).
      2. What information needs to be provided to the medical expert so that they can properly assess the employee; and
      3. What questions the medical expert needs to answer.

The letter to the medical expert should be carefully tailored to the specific circumstances to ensure that it is appropriate for that employee, their condition and the relevant situation under consideration.

What should an employer tell a medical expert about inherent requirements?
Ultimately, the employer needs enough information to be in a position to assess whether the employee is medically fit to complete the inherent requirements of their role.  The means that the medical expert needs to be properly briefed about the inherent requirements.

The inherent requirements are not limited to the duties listed in the employee's job description (though those can be helpful). 

The employer should also consider providing to the medical expert:

1. 1. 1. The employee's written job description which contains key duties (ie, what they should do).
      2. What duties the employee actually performs in practice.
      3. What duties the employee would be required to perform in an emergency or high workload situation (if relevant).
      4. The circumstances in which work is performed (eg, is there anything in particular the medical expert needs to be told about the available facilities or the environment that the employee works in).
      5. The job objectives (what is required, not how it is done); and
      6. Competency standards (eg, whether there are legislative requirements for the position, or whether the role is a statutory one that requires the completion of mandatory training).

What if an employee refuses to attend an independent medical examination?
This is a tricky area.  Employers should seek legal advice before dismissing an employee in such circumstances.  There is some relevant case law that may be able to assist an employer, in particular circumstances.

Some key lessons
There are some key lessons for employers when it comes to directing employee to attend a medical assessment, including:

1. 1. 1. Make sure to actively manage the process – don't let the process drag out, or fall away.
      2. Communicate clearly (and regularly) – both with the employee, and the medical expert; and 
      3. Carefully consider the resulting report and exercise care if considering termination of employment.

A final point to note
There really is no "one size fits all" approach when it comes to managing ill and injured employees – and more particularly, when issuing a direction to an employee to attend an independent medical examination.  The employer needs to manage each employee on a case by case basis, tailored to the individual, their role and their medical condition.