Is demanding a medical certificate in an employment contract legal?
Stephen Campbell is a wharfie crane driver. He took amphetamines and opiates. He came to work. His crane smashed into a ship. He forgot to report the damage.
Strangely, the Fair Work Commission in Melbourne said Stephen couldn’t be fired.
Stephen’s employer should have requested a medical examination in his employment contract. It would have found that he likes drugs. They wouldn’t have given him the job in the first place.
But is it legal to demand a medical certificate in an Employment Contract? This issue is considered in Grant v BHP Coal Pty Ltd  FWCFB 3027.
BHP forces the boilermaker to get a medical certificate – Grant v BHP Coal
Darrin Grant was a boilermaker at BHP Coal. A shoulder injury allowed Darrin to take 8 months off work.
BHP was dissatisfied with Darrin’s simple and vague medical certificates. BHP demanded a medical appointment. They even booked him in.
BHP Coal said:
‘BHP Coal has a duty of care to provide all employees with a safe working environment. Given your injury, we need to be satisfied you can safely perform the requirements of your role.’
Darrin had other plans. He didn’t bother going to the doctor. BHP suspended Darrin.
Could BHP force Darrin to attend a medical check-up?
The Court said an employer can force an employee to go to a medical check-up. It is legal for an employer to demand a medical certificate in an employment contract.
The Full Court held that the law obliges the boilermaker to comply with safety instructions. This includes complying with a direction to attend a medical appointment.
BHP correctly identified a health and safety risk arising from the employee’s return to work. This was due to the previously sustained workplace injury. Under the law, BHP was obliged to protect employees from harm. The requirement to take a medical exam was reasonable.
The Full Court held that the law “curtails the right to personal liberty”. Protecting the working environment is more important than privacy.
A case of the cold shoulder – Laviano v Fair Work Ombudsman
Guy Laviano works for the Fair Work Ombudsman. According to the Fair Work Ombudsman’s website they ‘promote a harmonious workplace environment’. Sadly, it didn’t help poor Guy. Guy suffers from depression and anxiety. He isn’t turning up to work.
The Ombudsman sets up medical appointments. Guy doesn’t turn up to any of them.
The Court said Guy was aware of the organised medical appointment. Guy didn’t bother to look at his emails. He was fired for failure to communicate.
Judge Altobelli said ‘… it was unreasonable in all the circumstances for the applicant to … ‘shut down’ all communication between the employer and himself …’.
This situation is avoidable. Instead, the Ombudsman should have required a medical certificate in the Employment Contract.
They would see that Guy suffers from depression. They would have responded accordingly.
Therefore, it’s important that an Employment Contract forces a medical certificate from the employee.
If you employ someone and they injure themselves and others then you may be liable as the employer. You are further negligent if you didn’t require a medical certificate in the employment contract. In contrast, you may be able to escape liability. This is because you did get a medical certificate and it showed a clean bill of health.
Employee privacy – it’s ok to pry?
Is asking about an employee’s health nosey? No, it isn’t nosey. It is a legal requirement. You can better avoid a negligence claim if you did requires a medical certificate in the employment contract. An employer should ask about the medical history. This is providing the information is relevant to the job.
By law, you must check the employee’s health condition. It’s vital to know workers are right for the job.
Just one condition away to stop a rainy day
Do drug affected crane drivers work for you? You don’t want to put that life jacket on just yet.
Build on Legal Consolidated’s website an employment contract. It can force an employee to provide a medical certificate before you employ them.
Adding this requirement to an Employment Contract highlights drug users and people that suffer from depression. It helps get them the right type of job.
Medical testing is to save all our employees
Pre-employment screening is a vital part of the recruitment process. It helps you decide whether the candidate is legally entitled to work and is suitable in the job.
The medical checks that you consider depend upon their position and the industry.
The Legal Consolidated Employment Contract allows you to check Medical and other issues, such as:
* criminal record
* immigration status
* assessment and profiling
* background and identification
Medical examinations are especially important when a certain level of physical fitness and health is required to perform a role.
But there are limits
Make sure that all candidates are treated fairly and consistently. This includes the above examinations.
Physical tests must relate only to the candidate’s ability to perform the duties of the job.
Best practice for pre-employment medical examinations:
- Test only what relates to the position and the industry.
You can’t test for general health if it does not affect their ability to do the job
- Ask the doctor to consider the work and tasks the candidate will do.
Machinery? Sitting in an office all day? Walking around? Flying an aeroplane? Being with children?
- Clearly let the candidate know what the job is and what you expect
Any pre-existing injury or illness relevant to the duties?
- Accommodate any disability.
Is a candidate required to disclose a disability? No. This is unless it’s likely to affect their job performance or work safely. They can legally write ‘not applicable’ on their job application form. But only if the disability or illness is not relevant to work performance. But, failure to reveal any illness or injury that affect their duties is unlawful. They also may lose workers compensation.
- Does the medical examination confirm that the candidate can do the job?
Or does the candidate pose a health and safety risk to themselves and others?
Build your Employment Contracts on our law firm’s website.
For help building your Employment Contract just telephone us.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
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This article was written by Professor Brett Davies and Legal Consolidated intern LLB candidate Joseph Wilson