By Erin Bethel, Senior Associate at CCI’s Business Law practice

An employee with a psychological or physical illness or injury can pose a multitude of challenges for an employer. 

An employer may wish to take steps to determine whether the employee is fit for work and/or to perform the inherent requirements of their role, for example, if:

  • An employee is absent from work for an extended period without satisfactory evidence or explanation
  • An employee has returned from an extended period of absence following an injury or illness
  • There is legitimate concern for the safety of the employee or others
  • The employee or the employee’s treating doctor indicate the employee has restricted capacity or is suffering from an illness or injury
  • Reasonable adjustments have been made but there is no improvement in the employee’s symptoms and/or performance.

In certain circumstances an employer may direct an employee to undertake a fitness for work assessment. 

For such directive to be considered lawful and reasonable, the employer must be able to demonstrate a genuine need for the medical information and that the circumstances under which it is obtained are reasonable. 

Before directing an employee to undertake a fitness for work assessment, it is important for employers to consider factors including (but not limited to):

  • Is there a legitimate reason to seek certain or additional medical information;
  • Does the proposed medical assessment only relate to the employee’s ability to perform the inherent requirements of their role;
  • Has the employee been informed of the purpose and process for seeking the medical information; and
  • The terms of the employee’s contract of employment and any applicable workplace policies and procedures.

Assessing an employee’s fitness for work can be a complicated process that poses a series of legal risks.

These may include potential breaches of the general protections provisions of the Fair Work Act 2009 (Cth), anti-discrimination laws, unfair dismissal claims, breach of contract or claims under workers’ compensation laws. 

Each step in the process of managing an ill or injured worker must be carefully considered. 

Our Workplace Consulting team here at CCI know these pitfalls well and are equipped with the skills and experience to navigate employers through the process and mitigate the associated risks by preparing policies and procedures to help manage the process.
Our team is also available to provide advice and assist with any paperwork where an employer needs to direct an employee to undertake a fitness for work assistance.

► Have a question for our Business Law WA team? Get in touch on (08) 9365 7746 or – or find out more here.