Earlier today, Monty posted a comment asking if his employer can obtain his full doctors reports from IME or from all the independent doctors he has visited in past months.They apparently told him that they got all the reports. Monty was thinking about privacy laws and acts… and so are we! So we went on a trolling spree and found some answers.
Medical assessments and bosses – injured workers rights
According to a fairly recent media report (Sept 2012) , injured workers are increasingly being forced to undergo unreasonable medical examinations, with their employers (bosses) at times even attending medical appointments with them.
So we wonder what the rights and obligations are of injured workers who are asked to submit to medical exams by their bosses and, what happens with regards to the medical information/report(s) that are then given to the employers?
Well, it appears that on one hand, bosses have a right and a duty to ensure that employees/injured workers can safely perform their jobs without the risk of injury to themselves or to others.
Apparently, whether a boss can legitimately force an employee/injured worker to attend medical testing or a medical exam depends on the particular facts of the “case”.
All employees/injured workers are obliged – by law- to follow the lawful and reasonable directions of their employer/boss. However, even if it is not unlawful for an employer to force or direct their employee/injured worker to undergo a medical examination, it may still be unreasonable.
For example, and in most cases an employee/injured worker may already have given their employer/boss adequate information about their impairment/injury or illness. (i.e. medical certificate outlining diagnosis, restrictions, etc; letter supporting ergonomic aides, again explaining the condition/injury etc).
In addition, the particular questions that an employer wants to ask a medical practitioner MUST be justifiable (that is reasonable)
Injured workers should take great care to ensure that their employers only ask such questions of treating doctors (GP, surgeon etc) or independent doctors as are reasonable in the circumstances.
It is really unreasonable for an employer to go on a “fishing expedition” by asking unnecessarily broad questions of medical practitioners, such as asking for a complete medical history. For example, they ask for “everything” incl your psychiatric examination report while they only need to know if you can lift 1 bag of carrots at work.
Also bear in mind that an employer who directs an injured worker to see the company doctor or to an independent medical examination should pay for the cost of such examination.
It is certainly not reasonable for employers to pressure workers into taking along a company representative, the boss, the manager, or anyone from work to a directed (or other) medical appointments with them.
Many employers “play doctor” and make their own medical judgments about injured workers without checking the current situation with a qualified practitioner, or will pressure the injured worker to undergo medical examinations at the company doctor or in the presence of a company rep.
In Victoria, employers have an obligation to provide injured workers with their pre-injury work or suitable work for 12 months (to the extent that it is reasonable for them to do so). Often employers will simply dismiss injured workers at the end of the 12 month period, without even properly assessing their capacity for work.
Many employers “play doctor” and make their own medical judgments about injured workers without checking the current situation with a qualified practitioner.
Victorian Injured workers who are terminated may have rights under the discriminatory conduct provisions of the Accident Compensation Act, if a substantial reason for their termination is because the employee gave notice of an injury, took steps to pursue a WorkCover claim, or gave or attempted to give a WorkCover claim to their employer.
Injured workers who are terminated from their employment may also have unfair dismissal rights. There may not have been a valid reason to dismiss them based on their impairment, or the company may have failed to follow a fair process in how it dismissed them. Employees who are denied the opportunity to comment about any medical report obtained by their employers, or to provide more detailed information about their condition or prognosis, will generally be treated unfairly and this may be a basis for an unfair dismissal claim.
Injured workers who are treated adversely at work, or who are dismissed, because of their impairment may also have the right to make a general protections claim with Fair Work Australia or a discrimination claim under state or Federal anti-discrimination laws. It is generally a defence to such claims if an employer can establish that the injured worker cannot perform the “inherent requirements” of his/her position, also known as the “general and reasonable requirements of the employment” in some contexts. The inherent or general and reasonable requirements of a position may be vary from case to case. Often the starting point is to ascertain the position or role performed by the employee. This does not always mean just the position description, but also what actual tasks or duties the employee was undertaking. An employee in such a situation can sometimes argue that the employer should have better accommodated his/her disability, by making reasonable adjustments to the workplace to enable her/him to perform the requirements of the position.
It may also be unlawful to terminate an employee’s employment if s/he has been temporarily absent from work because of illness or injury. This is defined in the Fair Work Regulations as an injury or illness extending less than three months or a total absence of less than three months within a twelve month period, for which the employee has not been on paid personal/carer’s leave.
Injured workers who are feeling unduly harassed or discriminated against in relation to their impairments/injury/illness should seek appropriate legal advice.
[Post dictated by workcovervictim and manually inserted on behalf of workcovervictim]
- Bosses are intruding on workcover doctor’s visits
- Employers incl RTW Coordinators are not allowed to attend doctors appointments
- FW Ombudsman: employers have no right to attend employee medical visits
- Workers compensation and their snooping