Your questions answered: Can we request that our worker sees a doctor or takes personal leave?

By Portner Press on September 20th, 2019
  1. Employee health & wellbeing
  2. Mental Health

Q
Our worker has a disclosed health issue (which he previously took extended leave for) as well as a suspected mental health concern potentially related to work stress.

The worker is physically able to perform his duties, however we are concerned that the impact of work stress may exasperate his health issues.

How can we exercise our duty of care to him?

Can we request that he is assessed for work fitness by a medical practitioner?

Can we insist that he takes personal leave to recover from illness or whatever is recommended in a medical practitioner’s health management plan?

What can we do if the worker does not wish to participate in these requests?

 

A
If an employer is concerned about the health and welfare of some of its employees, subject to their contracts of employment, policies and procedures, a company may be able to direct an employee to attend a medical examination to assess the risk to their health and safety (and that of others) in continuing to perform the inherent requirements of their roles.

This falls within an employer’s duty to ensure the health and safety of its workers. Any request for an employee to attend a medical examination must be reasonable in the circumstances.

Employers may also suggest that suspected workers receive treatment, or provide them with counselling services if need be.

The medical examination may assist an employer to determine whether an employee is fit to perform his/her duties, and what adjustments might be reasonable in the circumstances.

However, an employer needs to have a proper basis for requiring further information about an employee’s fitness for duties and the medical examination needs to be sought in order to gain an independent expert view as to the employee’s fitness to work.

You can require an employee to attend an independent medical examination:

  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;
  2. Where there is an express right in specific legislation that applies to the industry or 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. 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.

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