What medical questions I can ask on our new employee forms and what is our responsibility to identify our employee’s health status? Can I ask if they have any condition that may affect their ability to do their job? Questions like:
Can I ask if they have had any previous WorkCover claims?
In the event where an employee suffers a medical attack would the company be liable due to not taking preventative measures such as requesting employees to disclose medical conditions?
Employers may ask candidates medical questions that relate to their health upon recruitment, however they should be careful about how these questions are asked due to discrimination risks. Under the Disability Discrimination Act 1992, and other state-based anti-discrimination legislation, it is unlawful to discriminate against an employee on the grounds of disability, including during the recruitment process. However, discrimination may not be unlawful if the prospective employee is unable to carry out the inherent requirements of the role because of a disability.
Due to the risk of discrimination, employers should ensure they only ask questions that directly relate to individual’s ability to perform the role. This includes questions about the candidate’s previous medical history and any workers compensation claims they may have made. Employers should not give potential employees the impression that they will not be successful in the role due to their health.
As stated above, any questions about a potential or current employee’s health should relate directly to their ability to perform the role. Many health problems may be completely managed by an employee and may not prevent them from performing their role. One example would be diabetes. Employers should not take health concerns that do not relate to the role into consideration during recruitment and having knowledge of this could increase the risk of a discrimination claim or a general protections claim.
However, employers can ask a potential employee if they are aware of any health concerns that they think may prevent them from performing the role. Upon recruitment an employer should ask an open-ended question such as “do you have any health concerns that may prevent you from performing the role?” rather than asking candidates to list their medical conditions. Candidates may feel compelled to disclose irrelevant health concerns, therefore increasing the risk of discrimination.
Sometimes it may be appropriate for employers to carry out pre-employment medical tests for candidates. These tests must relate directly to the role and should assess the potential employee’s capacity to perform the inherent requirements of the job. Employers should not use pre-employment medical tests to assess a candidates’ general state of health.
Employers have a duty of care to provide safe work environments to all employees. This includes understanding an employee’s health or medication requirements and potentially modifying a role to accommodate these. For this reason, an employer can ask an employee about their general health or medication, however this information is more appropriate to ask an employee after they are employed, rather than during the recruitment process.
As health is often a private issue, employees may not wish to disclose their health status to their employer. Employers cannot force employees to disclose any information they do not wish to.
During recruitment, employers may ask individuals to outline any pre-existing injury or illness that they believe may affect their ability to perform the normal duties of the role in writing.
Employers also have obligations under privacy legislation in relation to holding medical information.See Handling employee health information for more information.
For candidates who are unsuccessful in their applications, employers must ensure they comply with privacy legislation. Medical information collected during recruitment should only be used for the purpose that it was collected (to determine a candidate’s suitability for a role) and should be destroyed once the employee is advised that they were unsuccessful in their application.
Victoria and NSW have state-specific legislation that relate to handling health information.
