Employee Medical Disclosure

In general, an individual has a right to keep their medical information confidential. However, there are occasions when an individual can only access a benefit or opportunity if they are willing to disclose their medical information. For instance, employers sometimes require prospective employees to undergo medical examinations and answer personal medical questions before they start work. This article looks at the legality of employee medical disclosure in Australia.

What is medical disclosure?

Medical disclosure refers to the revelation of any personal medical information, including:

• current disabilities and medical conditions, such as epilepsy
• previous surgeries and treatments
• previous workers compensation claims
• history of mental illness
• current medications
• history of illicit drug use
• genetic information that may be predictive of future health outcomes
• health information about close relatives

What can an employer ask?

It is well established that an employer can require an employee to submit to some level of examination of their health and medical condition during a hiring process. For instance, an employer might ask personal medical questions during the interview process, such as if the employee has a disability, medical condition or medication routine that could affect their ability to perform their role. However, this is not an open-ended right to intrude into the privacy of the prospective employee. An employer can only ask questions that relate to the genuine requirements of the position. The employee is only required to provide information that could be relevant to the specific position, and only if the information could reasonably be expected to impact on their work.

Pre-employment medical tests

Some employers require prospective employees to undergo a physical and/or psychological assessment before commencing employment. Legally, employers can ask for this medical assessment ‘when necessary’. This is typically when there are:

• inherent safety risks in the job, such as in the mining or manufacturing industries
• unavoidable tasks in the job that would be difficult for a worker with a disability or medical condition.

Mental health

According to the Australian Bureau of Statistics, 42.9% of Australians aged between 16 – 85 have experienced a mental health episode at some point in their life. The rules around mental health disclosure are the same as any other medical condition. As such, an employer can only request information that is relevant to the employment, if the employee’s mental health is likely to impact their work.

Can an employee refuse to provide medical information?

In Australia, there is no law that requires employees to give medical disclosure to a prospective or current employer. In fact, discrimination laws prohibit employers from treating an employee differently (including not hiring a worker) because of a protected attribute such as a physical disability or psychiatric condition. It is unlawful for an employer to reject an employee with a disability, if that person could still do the job. However, an employer may have a genuine and reasonable need to know about a worker’s medical condition to evaluate safety risks and to make accommodations to facilitate the employee’s work. In those cases, the failure to disclose a relevant medical condition may be a basis for the termination of the employment.

Case study

The Fair Work Commission (FWC) recently issued a decision on the importance of disclosure when it comes to an employee’s fitness for work. In Soans v KDR Victoria Pty Ltd T/A Yarra Trams [2022], the FWC looked at whether Yarra Trams was justified in terminating a driver. In July 2021, the worker suffered a stroke and was absent from work for four weeks.

The employee failed to disclose his medical issue to his employer because he thought he would be dismissed. The employer adhered to the National Standard for Health Assessment of Rail Safety Workers, which sets minimum standards for transport operators to mitigate the risk that operators’ ill health could have on the safety of transport systems. This National Standard requires a worker who has a stroke to be declared temporarily unfit for duty for at least three months afterwards.

When the employee returned to work, he was expected to attend two medical assessments because of his medical leave. The employee did not disclose the stroke during the first health assessment, instead saying his absence was due to exhaustion. The assessing doctor allowed the employee to return to work subject to review. At his two-week review appointment, the doctor received the worker’s hospital records and advised the employee that as he had suffered a stroke, he was unfit to work under the National Standard and could only return to work after three months and clearance from a specialist.

The employer conducted an investigation and dismissed the employee for failing to disclose his diagnosis and his lack of honesty and candour during the investigation. The FWC agreed that the employee’s false and misleading statements to the doctor and his employer was valid reason for dismissal. The unfair dismissal claim was therefore dismissed.

Go To Court Lawyers can answer any questions you have about medical disclosure or whether you have to consent to a medical test. Please get in touch with our helpful staff on 1300 636 846.