When are employees asked to attend a medical examination?
We are often asked for advice about what to do when an employer asks an employee to hand over medical information, or to attend a medical examination by a doctor of their employer’s choice. Usually this happens in one of the following circumstances:
The legal framework
Employers have a common law duty to take reasonable care to protect their employees from foreseeable injury arising from their employment. Therefore, employers have an obligation to ensure that employees are medically fit to perform the inherent requirements of their job.
Employers are also required under occupational health and safety law to provide and maintain a working environment that is safe and without risks to health. This includes ensuring that employees are medically fit to perform their duties.
Finally, it is a well established employment law principle that employees must follow the lawful and reasonable instructions of their employers.
Applying the law
Every case will be different and will depend on its own unique set of facts.
However, in general, it may be a lawful and reasonable direction to require an employee to submit to a medical examination by a company nominated doctor where:
As well as the requirement that there be a genuine need for a medical examination, the actual direction to attend the medical examination should itself be reasonable. The factors to consider in determining whether or not a particular proposed medical examination is reasonable include:
Some practical strategies for dealing with directions to attend medical examinations
It is important to gather as much information from the employer as possible about the nature of the proposed medical examination of an employee, before deciding what your next move will be. You should let the employer know that you are considering its request, but in order to do so you require further information, such as:
If you have the opportunity to have input for the questions asked of the medical examiner, you should ensure that the doctor is being asked:
We find that these approaches are of assistance because it gives you an opportunity to influence the outcome, but also puts the employer on notice that you are taking the matter seriously, in which case they may be more careful to strictly comply with the law.
What does this mean?
In certain circumstances, an employer does not have to accept, on face value, a medical certificate provided by an employee regarding their fitness for work.
Where there is a justifiable basis and the employer has reasonable concerns about the employee’s fitness for work, the employer can seek further information, or direct the employee to attend a medical examination.
In most cases, the employer’s obligation to ensure the safety of its employees will provide a justifiable basis for making the request. Reasonable concerns about the employee’s fitness for work could arise in a number of circumstances, including where:
the employee’s injury or illness and/or the treatment received may affect their capacity to do their job.
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Why does it matter?
It is important for both the principal contractor and the sub contractor to know what the relationship really is. Many conditions of employment such as annual leave, and remedies in the industrial relations jurisdiction, such as unfair dismissal and denial of contractual benefits, are limited to employees only. Principals may be exposed to claims for underpayment of wages, fines or matters relating to vicarious liability. Employees may be entitled to a range of conditions not enjoyed by sub contractors.
Regardless of whether you or your subcontractor label him/her as a sub-contractor does not necessarily mean that they are one. The arrangement must fit within the legal definition of a sub-contractor otherwise it may be deemed a sham arrangement.
What is a sub-contracting arrangement?
A sub-contracting arrangement is a business to business relationship, with the subcontractor providing a service which usually involves providing labour, tools, capital equipment and expertise. A sub-contractor undertakes to produce a given product or service and is not under the direction or control of an employer in the execution of his or her work. A sub-contractor can delegate their tasks to someone else to perform.
What is an employment relationship?
In an employee/employer relationship the employee provides labour and works under the direction and control of the employer. The employer determines who does the work as well as when, how and where it is done.
Employees usually work for only one employer. A sub-contractor is usually free to offer his or her services to anyone. Employees are an integral part of the employer’s business and usually work on an ongoing basis. Sub-contractors provide services as their own businesses or on their own account, working when (generally) it suits them.
Employees are usually paid according to the relevant award, agreement or contract of employment. A sub-contractor usually negotiates and agrees on a rate for a specific job. Employees generally receive benefits in addition to wages such as paid leave. Sub-contractors do not have these entitlements. Employees usually work with the employer’s tools, equipment and materials. Subcontractors usually provide their own tools, equipment and materials.
The checklist below may help to determine whether your subcontractors are employees or a sub-contractors. It is a guide only and is not intended to give you a definitive assessment of the work arrangement.
Click here for the checklist – Subcontractor or Employee Checklist
* Workers’ Compensation can also apply to sub-contractors as well as employees. A tick in the grey boxes indicates that an employer/employee arrangement may exist. The more grey boxes you have ticked the higher is the probability that it is an employer/employee relationship.
If you have answered yes to more grey questions than white questions you need to seek professional advice as this relationship is likely to be that of employer /employee and not Principal Contractor / Sub Contractor.