Can employers require a medical assessment?

Recent decisions of the Fair Work Commission provide clarification about when an employer can direct an employee to attend a medical assessment.

Last years’ ruling by the FWC in Grant v BHP Coal Pty Ltd provided that a direction to attend a medical assessment will be reasonable and lawful in circumstances where an employer has a genuine basis to seek to determine an employee’s ability to perform the inherent requirements of their position. A refusal by an employee to follow such a direction may appropriately warrant disciplinary action.

However, the recent case of TWU v Cement Australia cautions against taking a blanket approach to requiring medical assessments. In that case, the introduction of compulsory bi-yearly medical assessments to test workers’ level of risk in performing their duties, was not considered a reasonable and lawful direction. The requirement, which was developed in response to frequent reported injuries in the workplace was found to be based on a general concern rather than a genuine need to establish a worker’s fitness to perform the inherent requirements of the job.

Tips for getting it right

• An employer may require an employee to attend a medical assessment if:

• it can establish a genuine need for the assessment; and

• the assessment is relevant to the employee’s ability to perform the inherent requirements of the role.

• The requirement to attend a medical assessment must be considered on an individual basis, a blanket requirement may not be reasonable.

• Employers should be mindful that the storage and use of the information collected in the assessment complies with relevant privacy obligations.