CCIWA Mental Health Kit: Part 5 – Medicals
An employee's mental health can affect their ability to do their job in the same way that physical health can.
But what can you do as an employer to manage your staff suffering from ill mental health?
What are medical assessments?
Medical assessments can be used by employers in a variety of situations to assess an employee’s fitness for work. They are designed to assess if an employee can safely do specific jobs or tasks.
Medical assessments may also be referred to as 'fitness for work', 'fit for work' or 'occupational health assessments'.
Common situations where you might request a medical assessment:
- Employee is absent from work for a long period of time with unsatisfactory evidence provided.
- Legitimate cause for concern to the safety of the employee or others.
- Return to work from an injury or illness (on full or restricted duties).
- Reasonable adjustments have been made with no improvement in symptoms and/or performance.
- Employee has disclosed a mental health condition but you need to initiate performance management processes.
- Employee is no longer able to perform the inherent requirements of their job.
- Before requesting a medical assessment, consideration should be given to the following:
- Is it a reasonable and lawful direction?
- Is it a reasonable request to require certain or additional information?
- Ensure the medical assessment request relates to the inherent requirements of the position (i.e. ensure a position description is provided and contains the essential requirements of the role).
If you are unsure of the terms included in your awards or agreements, or the applicable terms in the legislation please contact CCI’s Employee Relations Advice Centre on (08) 9365 7660 or [email protected]
The ability to request an employee to attend a medical assessment as a reasonable and lawful direction is derived from common law, contracts
of employment, industrial instruments (i.e. awards, agreements), legislation (e.g. FW Act, OSH Act) and company policies. Always consider the content of these instruments. For example an enterprise agreement may have a term allowing the employer to direct the employee to undertake a medical assessment.
- The employee is returning from a period of sick leave absence and has failed to provide satisfactory medical clearance.
- You have legitimate cause for concern regarding an employee’s fitness for work
Requests that may be considered unreasonable:
- You request the employee attend a medical practitioner who practices an unrelated field. For example, sending someone for a physical assessment if they are returning from a mental health issue.
In some cases where there is a legitimate and justifiable concern that it is unsafe for the employee to remain in the workplace, they can be stood down pending a medical assessment. An employee who fails to follow a reasonable and lawful direction from their employer may be warned this could result in disciplinary action being taken. The employer should ensure, however, that this would not be considered ‘harsh, unjust or unreasonable.’
An employee does have a duty to disclose under s20 of the OSH Act if the issue or condition may pose a risk to his or her own safety and health at work, or the safety and health of others at work; or disclosure is required under the relevant company policy (i.e. fitness for work).
Employees are generally not obliged to provide details to their employer regarding any mental health issue or condition they may be experiencing.
If you have a legitimate cause for concern that the employee is affected by mental health issues/ medical illness you may make a reasonable and lawful request for information from the employee’s own doctor with their consent.
If the employee does not give consent for you to contact their treating doctor
Inevitably each case will be different and will therefore depend on individual circumstances. In particular, whether there is a risk of harm to the employee or others (duty of care consideration).
Although the workplace may not be the cause of the illness it can exacerbate symptoms. Accordingly, employers should make observations as to the affected employee’s behaviours, interactions with other employees and the general approach he/she is taking to their work to determine whether risk is present.
If an employer is about to performance manage an employee or has already commenced when the employer becomes aware the employee has a mental health issue, consideration should be given as to the risks and benefits of continuing with performance management or not, especially if there is a potential for the mental health issue to be exacerbated.
It may be reasonable for you to direct the employee to see a medical practitioner of your choosing or for them to undergo a fitness for work assessment.
Such circumstances could include where the employee:
- does not give permission for you to consult their treating practitioner; or
- is not under medical care; and
- you have ascertained there is a risk to the individual or others.
For such a direction to be permissible under common law, the direction to attend a fitness for work assessment must be reasonable in the circumstances.
Employers should not ask the medical practitioner for the specific medical diagnosis. What is required is the prognosis and whether the employee is fit or unfit for duties and if fit for work, whether there are any restrictions on the duties.
When requesting information from a medical practitioner about an employee and their fitness for work, a detailed current job description should be included. For an example under Disability Discrimination legislation refer to Part 3.
The information requested must only relate to the position for which the employee is employed.
Also consider requesting what in the workplace environment may ‘trigger’ or aggravate/exacerbate the employees mental health issues i.e. specific smells, an individual, a situation, or exposure to loud noises.
TIP: If you have good reason and evidence to suspect the medical opinion is inaccurate, consider sending the employee to a different doctor or a specialist in the field.
Case summary: reasonable lawful direction
A 2015 case showed that employer BHP Coal, was within its rights to direct its employee to undergo a medical assessment.
The worker was a boilermaker at a Queensland coal mine and sustained a shoulder injury at work.
After undergoing surgery, he was directed to see an occupational therapist but did not show up to the appointment.
The Fair Work Commission found that the worker was not unfairly dismissed.
Case summary: requesting additional medical information
A Qantas pilot was on sick leave for 15 months after providing a medical certificate stating he had clinical depression and was unfit for work.
He then provided another medical certificate seeking to extend his sick leave.
His employer asked him to provide a written report from his doctor indicating his ability to perform his duties and when he was likely to return.
The union alleged the employer had taken adverse action by threatening to take disciplinary action against the pilot who had exercised a workplace right to provide a medical certificate as evidence of being unfit for his duties.
The Federal Court found that Qantas had not interfered with the pilot’s workplace rights, dismissing the union's claim.