Directing an employee to attend a fitness for work assessment

May 8, 2017

One of your receptionists has been arriving late to work and taking more sick leave than usual. She has been teary and disruptive at work and you have received complaints about her from other staff members.You have spoken with her a few times and she has promised to do better.

Two weeks ago her husband rang to say that she would not be able to attend work as she had suffered a panic attack. She has not been back to work since. She has provided a medical certificate which says that she is suffering from a medical condition. She called you today to say that she is coming back to work on Monday, but you’re not sure whether she should be returning.

The receptionist allowed you to speak with her practitioner about her condition. You discovered that she is undergoing IVF treatment and having to deal with pregnant women and patients with young children at the reception desk was causing her anxiety and stress. As an interim measure, you offer the receptionist a back room typist position so that she can continue her employment, but not have to deal with such patients at reception. The employee has committed to seeking psychological assistance so that she can resume her usual role in due course.

Obtain details of the medical condition

If an employee has been absent for an extended period, it is prudent to seek medical advice about the employee’s fitness for work before the employee returns to work. This is because an employer is required to ensure, so far is reasonably practical, employees’ safety at work.

The starting point is generally to get the employee’s consent for you to speak with their treating medical practitioner. It is important for you provide information to the practitioner so they can properly assess whether the employee is able to perform the essential requirements of their role given their medical condition. You should give the practitioner information such as:

  • the employee’s duties and responsibilities (for example, job description, a list of tasks that the employee is expected to perform).
  • the physical requirements of the employee’s role (for example, the employee must sit for long periods; the employee will have access to drugs at the practice; the employee is required to work a roster to cover nights and weekends; the employee is required to interact with pregnant patients).
  • the employee’s absenteeism history, including any information the employee has provided to you explaining their absences.
  • other relevant background about the position (for example, the employee is undergoing a performance management process).

Fitness to work assessment

If the practitioner assesses the employee as fit to perform the essential requirements of the role, the employee can return to work and their usual role.

If the practitioner assesses the employee as unfit for work (that is, unable to perform the essential requirements of the role) the employee should remain on paid sick leave or, if they have run out of paid sick leave, another form of paid leave or unpaid leave. You should seek advice about the ongoing management of the situation. For advice, visit our Medico-legal Advisory Service page or phone 1800 128 268 in emergencies.

If the practitioner assesses the employee as fit for work with some adjustments (for example, they should work reduced hours or days for a period of time or can only perform some tasks of the role), you should consider whether the adjustments are reasonable and whether you can accommodate them. If you can, you should do so. If not, you should seek advice.

If the employee refuses to allow you to speak with their treating medical practitioner, you need to consider whether you have a right to direct the employee to provide you with information about their medical condition. You can only do this if there is a clause in their employment contract requiring them to provide medical evidence about their fitness for work or the requirement to provide medical evidence is lawful and reasonable.

If there is no such clause in their employment contract or the requirement to provide medical evidence is not lawful and reasonable, there is no right to direct the employee to attend a medical assessment. Specific advice should be sought about the matter.

Find out more

For more advice, visit our Medico-legal Advisory Service page or phone 1800 128 268 in emergencies.

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