Requesting further medical information

We frequently advise employers who feel powerless to request further medical information from employees who are ill or injured for fear of breaching protections for employees in the workplace.

However, obtaining detailed medical evidence is critical to the implementation appropriate work, health and safety measures for sick employees and their healthy co-workers.

So, in what circumstances can I ask for medical evidence?

Section 107 of the Fair Work Act is a clear basis for requesting medical evidence (usually a medical certificate, statutory declaration or a certificate from another allied health provider) when an employee is absent from work in the short-term.

Employer’s work, health and safety obligations can also be relied on in circumstances where a long-term ill employee decides to return to work. In the very recent case of Grant v BHP Coal Pty Ltd,[1] the Full Bench of the Fair Work Commission found that BHP acted lawfully in directing Mr Grant, an employee, to attend medical examination by an orthopaedic specialist, and then terminating Mr Grant’s employment when he refused to attend the examination.

The Full Bench found that BHP’s requirement that Mr Grant be medically assessed before returning to work was a lawful and reasonable direction that was directly referable to BHP’s obligation to discharge its work, health and safety to both Mr Grant and its other employees. Mr Grant was warned that failure to comply with the direction to attend could result in disciplinary action and, accordingly, the decision to terminate his employment was found by the Fair Work Commission to be valid.

Can I challenge a medical certificate if I think an employee has been dishonest?
Challenging the veracity of a medical certificate is a much more fraught and delicate issue. While it can be done, employers should have strong grounds for challenging a medical certificate before taking the issue up with an employee, as the onus will be on the employer to prove the employee’s dishonesty. Nevertheless, there are examples of cases where the Fair Work Commission has upheld decisions by employers to validly employees who dishonestly used medical certificates, see for example, Walker v Bow Tie Removals and Storage Pty Ltd [2012] FWA 2851 and Anderson v Crown Melbourne Ltd [2008] FMCA 152.

These recent decisions provide reassurance that employers are not powerless in the face of a dreaded, generic medical certificate. Seeking advice upfront will, in most cases, provide employers with assurance that they are able to seek the information they are requesting and to deliver better work health and safety benefits for sick employees.

For more information contact the Meyer Vandenberg Employment, Industrial Relations & Safety team:

Jennifer Wyborn — Partner — Employment Industrial Relations & Safety
(02) 6279 4328
jennifer.wyborn@meyervandenberg.com.au

Emma Vautin — Lawyer — Employment Industrial Relations & Safety
(02) 6279 4363
emma.vautin@meyervandenberg.com.au