Has your employer directed you to attend a medical examination by a doctor of their choice? You may be questioning whether your employer has the right to require you to attend that independent medical examination (IME).
Every case is different and the answer as to whether you are obligated to attend an IME at the directive of your employer may vary from case to case.
Work Health and Safety laws impose strict obligations on employers to ensure the safety and well-being of its employees, and on employees to ensure their own health and safety at work. For example, in New South Wales, the Work Health and Safety Act 2011 (NSW) imposes duties and obligations upon an employer between sections 19 and 26, and at section 28 for employees.
In order to abide by their obligations, an employer may request an employee to attend a medical examination to confirm their fitness for work. For example, this may occur in the following circumstances:
- if an employee is proposing to return work following a workplace injury;
- if an employee has been on restricted duties for an extended period of time and is about to return to full duties; or
- if an employee has been on an extended period of sick leave.
There are several ways that an employer may require an employee to attend an IME, such as:
- a term in an employment contract or enterprise agreement expressly provides an employer with a right to direct its employees to attend an IME in certain circumstances;
- an employer may be given an express right to send employees to an IME under legislation that applies to a particular industry or sector that an employee works in. For example:
- coal mine workers in Queensland are obligated to comply with instructions given that are related to health and safety, including a direction to attend a medical appointment pursuant with section 39 of the Coal Mining Safety and Health Act 1999 (Qld) and determined by the Full Court of the Federal Court in Grant v BHP Coal Pty Ltd;
- Commonwealth public sector employees may be directed by their agency head to attend a medical examination for the purposes of assessing the employee’s fitness for work as prescribed under regulation 3.2 of the Public Service Regulations 1999 (Cth).
- an employer asking an employee to attend an IME and that employee agrees; or
- an employer issues an employee a lawful and reasonable direction for the employee to attend an IME.
Is an employer’s request for an employee to attend an IME a lawful and reasonable directive?
An employer has a right at common law to issue their employees with a lawful and reasonable directive, which employees are obligated to obey.
The Full Court in Blackadder v Ramsey Butchering Services Pty Ltd found that an employer also has a right to request an employee to attend an IME if there is genuine indication of a need for it and it is reasonable for your employer to make such a request.
Based on the authority of Blackadder, Commissioner Roe of the Fair Work Commission considered in Daniel Cole v PQ Australia Pty Ltd that a number of factors needed to be taken into consideration when determining whether an employer’s request for an employee to attend a medical examination was reasonable. These factors include:
- whether there is a genuine indication of the need for the examination, such as:
- prolonged absences from work;
- absences without explanation; or
- evidence of an illness which relates to the employee’s capacity to perform the inherent requirements of their job;
- whether the employee provided adequate medical information to the employer to explain absences and demonstrated the employee’s fitness to perform their duties;
- whether the industry or workplace works in is particularly dangerous or risky;
- whether the employer has legitimate concerns that an employee’s injury or illness will impact on others in the workplace;
- whether an employee was advised of the details of the conduct which led to the employer’s concerns that the employee was not fit for duty;
- whether the medical practitioner of the employer’s choice has been advised of the issues of the employer’s concerns and were those matters focused on the employee’s inherent requirements to perform the job;
- what information the employer proposed to give the medical practitioner about the employee’s actual job requirements;
- whether the employee was advised of the matters to be put before the medical practitioner for their assessment; and
- whether the medical assessment is truly aimed at determining, independently, whether the employee is fit for work.
Employer’s do not have an unfettered right to direct its employees to attend an IME. However, employees should be mindful before refusing to attend an IME at the directive of their employer’s, because failing or refusing to abide a lawful and reasonable directive may result in disciplinary action, including termination of their employment.
If you have been directed by your employer to attend an IME, make sure you obtain as much information as possible from your employer, including:
- the reasons why your employer is directing you to attend an IME;
- the questions your employer intends to ask the medical examiner;
- the documents your employer intends to provide the medical examiner; and
- the nature of the proposed medical examination, whether it will be a physical or psychological assessment.
If you have any questions or require advice if you are required to attend an IME at the request of your employer, please contact our office on 1300 851 430 to speak with one of our employment lawyers.