When do employees need to disclose their medical history?
Requesting an employee’s medical history can be a tricky conversation.
Both candidates and employers have legal obligations to consider how medical issues might impact the candidate’s ability to fulfil the requirements of the role.
When is it necessary for candidates to disclose medical history?
Employers have the right to be made aware of a candidate’s medical history in specific circumstances when the medical condition relates to the employee’s capacity to perform the role.
Once the role starts, the employer is going to have an obligation to ensure employees’ safety at work as far as they reasonably can.
There are obligations under State, Territory and Commonwealth anti-discrimination laws which state that if you’re going to take somebody’s disability into account, which can be an injury or illness, then you can only do so when it’s relevant and tied back to the role.
Under the Disability Discrimination Act 1992 (Cth), employers must provide reasonable workplace adjustments if requested.
Employers are in a much stronger legal position if they have asked the candidate about their medical history and been given a dishonest answer than if they have neglected to ask the appropriate questions.
However, if an employer hasn’t asked those questions and [the candidate] hasn’t volunteered the information, and [an injury or disability] is disclosed after an offer has been made, then an employer may need to backtrack on the offer and could [open themselves] to legal issues.
There are three crucial things for an employer to consider when asking an employee about their medical history.
- Ask the right questions
A question like, ‘Please list your medical conditions”.
Rather than asking open questions that ask for unnecessary personal data to be disclosed, employers can ensure they are satisfying their legal requirements by tailoring the screening process to each role they are trying to fill.
- Don’t make assumptions
If a role has specific physical requirements, Think about it like a traffic light – amber, red and green.
If a report comes back in the middle, then the obligation is to look into it further. An employer cannot say, ‘Oh, you’re someone who’s got a problem. We’d prefer not to have you.’
That’s really problematic, especially when you’ve got great references, terrific job history and every relevant qualification.
The employer should think about requesting a medical report.
The employer needs to investigate the adjustments you can make. In a lot of these cases, problems arise when a series of assumptions have been made or that question mark hasn’t been investigated a little bit further.
- Ensure the privacy and security of medical data
Keeping employee data strictly on a need-to-know basis, handling with utmost care and with the highest levels of data protection possible.
While it may be necessary to share medical information about an employee in the organisation to protect their safety, sharing this information externally – such as when another employer contacts the business for a reference – can have severe consequences.
Should employees disclose health issues if they don’t need to?
While employees are not legally required to disclose a health issue that does not significantly impact their role, there are some benefits to sharing non-essential health information with an employer.
If employees feel comfortable sharing health issues they should be encouraged to do so. And what that allows is for employers to provide adjustments, flexibilities, or just a more general understanding and context to someone.
If you need assistance in understanding the correct policies and procedures that cover workplace medical history, contact John Morrissey. John will both save you time and make sure that both the employer and employee are protected by the correct agreement.
