Friday, 23 August 2013

Employment-related medical testing

Q. Can I ask an employee or prospective employee to attend a medical examination?

A. Yes, in some circumstances, provided that you have a reasonable basis for doing so.

In some circumstances, employers can ask an employee or a prospective employee to attend a medical examination, including:

  • to assess whether the employee can perform the requirements of the job (including the specific skills, capabilities and attributes that are required for the job)
  • to assess whether the employer needs to make reasonable adjustments to help the employee or prospective employee to perform the genuine and reasonable requirements of the job
  • if the employer is concerned about the employee's health and safety at work or the health and safety of other people or property.

Employers must have a reasonable basis for asking for a medical examination to be carried out.

Under the Victorian Equal Opportunity Act 2010 (the Act), employers must not discriminate against an employee or a potential on the basis of a disability. Employers can set reasonable requirements of the job. For example, a flight attendant could be required to be able to lift a certain weight to be able manoeuvre doors if there is an emergency. Employers should consider these issues carefully. The process and information obtained need to be managed well to ensure that they are not discriminatory.

If the results of medical testing reveal a disability that is unrelated to the requirements of the job, this must not lead to any discrimination such as the termination of an employee's employment or denying them opportunities for promotion.

The Act includes an exception that allows employers to discriminate against a person on the basis of disability if the discrimination is reasonably necessary to protect the health and safety of any person or property. For example, it might not be reasonable to have a person who has regular seizures operating a crane on a worksite in order protect health and safety. Employers also have a legal obligation to make reasonable adjustments for an employee or prospective employee with a disability, if those adjustments would help the person to do the job. Reasonable adjustments are changes that allow people with disabilities to work safely and productively (such as installing access ramps for wheelchairs, providing flexible working arrangements or allowing a person to be absent to attend medical appointments). In many cases small adjustments can make sure people can participate in the workplace and you can get the most out of your employees. Open communication with your employees is a key factor in making this work.

This a complex area where a number of different laws, company policies and agreements may operate. Employers should seek advice about medical testing in particular circumstances.