AREEA employee relations consultant Catherine McGonigle explores the facts about employment medicals and shares her advice on employer obligations concerning privacy and discrimination issues.
EMPLOYMENT medicals are commonly used by employers in the resource industry to assess an individual’s physical and mental ability to safely perform the inherent requirements of a particular position.
These days almost all positions offered at remote work sites are subject to an employee passing some form of medical assessment. Despite wide spread use of employment medicals many employers still fail to understand their obligations in relation to the collection, use, handling and disclosure of sensitive medical information relating to both potential and current employees.
Privacy
The Privacy Act 1988 (Cth) (‘the Privacy Act’) governs the collection, use, handling and disclosure of personal information by the government and private organisations. It contains 10 National Privacy Principles (‘NPPs’) that represent the key obligations private sector organisations must comply with.
The Privacy Act exempts employee records from the NPPs. An employee record is broadly defined to mean personal information relating to the employment of the employee. Examples of employee records include health information, training records, leave, performance and termination records.
The exemption can be applied to personal information where:
- It is directly related to a current or former employment relationship; and
- It is an employee record held by the organisation relating to the individual.
Regardless of this exemption employers should remain vigilant in the way employee records, including medical records resulting from an employment medical, are collected, used, handled and disclosed within or outside the organisation.
Can prospective, current or former employees access medical results?
Often prospective, current or former employees will request access to the results employment medical commissioned by an employer, particularly where they have not passed the medical requirements of the position resulting in a lost opportunity.
For prospective employees (i.e. there has never been an employment relationship) the exemption contained within the Privacy Act would not apply and the employer must comply with the NPPs, including providing access and correction to information relating to personal records.
If the exemption contained within the Privacy Act applies (i.e. the record relates to a current or former employee and it is an employee record held by the organisation), employers are under no obligation to provide access to those records. However, there may be other reasons why an employer would not seek to impose such a strict application of this legal principle; for example perhaps it goes to the concept of procedural fairness or the employer has an open and transparent workplace culture This should be a judgment call based on the individual circumstances of each case.
This is a complex area of law so each case should be considered on its merits and professional advice sought.
Disability Discrimination
While employment medicals are a legitimate tool to assess a person’s ability to safety perform the physical and mental requirements of a position, employers must take care to ensure the medical information obtained is not used for unlawful discriminatory purposes.
The Disability Discrimination Act 1992 prohibits direct and indirect discrimination on the basis of an individual’s disability.
An employer may lawfully discriminate where the disability results in the person being unable to perform the inherent requirements of the position or adjustments to the workplace that would allow the individual to meet the inherent requirements of the position cause unjustifiable hardship to the employer.
To avoid claims of unlawful discrimination on the basis of a person’s disability employers should take the following steps:
- Ensure employment medicals are conducted by a qualified medical practitioner and are tailored to the position. For example, a sedentary position located primarily in an office environment would require a very different medical assessment to a physical labourer working primarily outdoors.
- The requirements of the position should be accurately identified and recorded in a position description before an employment medical is undertaken.
- The requirements of the position should be clearly communicated with the person before an employment medical is undertaken.
- Where possible, consider ways to accommodate the disability.
- If in doubt, actually show the qualified medical practitioner the inherent requirements of the position– where it will be performed, the functions and challenges likely to be faced etc. This will assist to alleviate any doubt as to whether the individual can safely perform the role.
Implications for Members
Employers must be vigilant if they choose to utilise employment medicals as a way of assessing a person’s suitability for employment. Failure to ensure those medical tests are used appropriately can risk breaches of Australian privacy law and claims of unlawful discrimination.
To mitigate the risk of medical information being mishandled or misused AREEA recommends employers establish a robust workplace procedure that outlines who has access to the employment medical results, where and how the record will be stored, the purpose for which the information will be used and how the employer will protect those records.
For more information, contact your local AREEA office here.
