Directing employees to attend medical examinations

Posted By Chris Delaney / Uncategorised / certificates, directing, doctors, employee, employer, examination, medical / No Comments

Directing employees to attend medical examinations

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:

  • following a workplace injury, upon a return to work;
  • after a return to work, but before a return to full duties
  • after an extended period of sick leave, or
  • out of the blue after working with restrictions for years post-injury.

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:

  • it is reasonable for the employer to make such a request, and
  • there is a genuine indication of a need for it.
  • There are many factors to take into account in considering whether a there is a genuine need for an employee to attend a medical examination, including:
  • whether the injury or illness for which the employee is absent from work is related to the inherent requirements of the employee’s position
  • whether the employee has had prolonged and/or unexplained absences from work
  • the nature and content of medical information already provided by the employee to the employer – in particular, if the employee has already provided medical information and whether it addresses issues of fotness to perform duties.
  • whether there are unexplained inconsistencies in the employee’s medical certifications or absences
  • the nature of the employee’s workplace, including the type of work performed and the degree of risk associated with that type of work, and
  • whether the employer has legitimate concerns that the illness or injury will impact on others in the workplace

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:

  • whether the medical examination is specific and focussed on the inherent requirements of the job (or is it a fishing expedition?)
  • whether the medical practitioner is apprised of the employee’s actual job requirements (as opposed to, for example, a generic position description), and
  • whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.

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:

  • the grounds on which the employer believes it is entitled to direct your member to attend a medical examination;
  • the questions that will be asked of the medical examiner
  • what documents and copies of the documents that will be provided to the medical examiner
  • the nature of the proposed medical examination, for example, will it include a physical assessment?, and
  • the position against which your member will be assessed, for example will your member be assessed for fitness to perform his or her actual job, or against a broader job description for a general classification of workers?

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:

  • for an opinion about the ‘inherent requirements’ of the position, rather than the ‘full range of duties’
  • for an opinion on the actual position of your member, rather than a broader job description of a general classification of workers, and
  • whether there are any adjustments that could be made to the role to enable your member to perform the inherent requirements of the position.

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 is absent for an extended period
  • the employee attends work unannounced after an extended absence
  • limited or no medical advice or specific information has been provided about the employee’s illness or injury
  • the work to be performed by the employee on their return to work is high risk, and

the employee’s injury or illness and/or the treatment received may affect their capacity to do their job.

 

For more information or assistance contact admin@workplacerelationsspecialists.com.au

 

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Employee or Subcontractor?

Posted By Chris Delaney / Uncategorised / checklist, control test, employee, sham arrangements, subcontractor, tax avoidance / No Comments

Employee or a Sub-contractor?

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.

Other factors?

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.

 

 

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