Your questions answered: Is hiring someone with a pre-existing injury risky?

By Portner Press on May 7th, 2019
  1. Bullying, Harassment & Discrimination
  2. Discrimination in the workplace

Q
Can you please assist by outlining some recommendations when requesting a ‘fitness to work’ for an applicant who has passed the interview selection within our recruitment process? Are we putting our organisation at risk of a possible future workers’ compensation claim by hiring someone with a pre-existing injury that requires restrictions on the inherent requirements of the position for which they are applying?
A

An action in discrimination will be available to a candidate who, during the interview process, reveals a previous injury or ailment, and the prospective employee is not chosen for the role because of that previous injury or condition. The only exception to this is where the injury or condition would prevent the prospective employee from
performing the inherent requirements of the role for which they are interviewing. Inherent requirements are the essential activities of a role which, if removed, would make the position a different role. Inherent requirements do not involve peripheral or non-essential tasks.

If you are unsure about an employee’s ability to perform the inherent requirement of their role and the risk they pose to their health and safety, you may request an employee to attend a medical examination. A medical examination may assist you to determine whether an employee is fit to perform their duties.

You should provide the doctor with information about the employee’s duties, and request the doctor provide an assessment of whether the employee is able to perform those duties or whether there may be measures you can take to assist the employee to perform their duties. You should also request an assessment of the duration of any
impairment. A medical examination will also assist you to determine what adjustments might be reasonable in the circumstances.

Under the Disability Discrimination Act 1995 (Cth), you are required to make reasonable adjustments that would enable a worker with a disability to meet the inherent requirements of their role. A reasonable adjustment is a supportive measure to accommodate a worker’s disability.

The only exception to the requirement to make reasonable adjustments in the workplace would be where an adjustment imposes an unjustifiable hardship on an employer.

In the case where there are no reasonable adjustments that an employer can make to enable their employee to meet the inherent requirements of their role, an employer may be permitted to dismiss their worker.

Where an injured worker has an ongoing inability to perform the inherent requirements of a role, permanent modification of the role is unreasonable, and no viable alternatives for redeployment exist, employment termination may be justified.

The organisation may be exposed to a WorkCover claim if a pre-existing condition is aggravated by work, so you should look at alternative arrangements to minimise the risk of any aggravation occurring if need be.

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