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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