Ensuring safety in the workplace includes ensuring that all employees are well enough to safely perform their duties. Employers owe this important duty of care not only to individual employees but also their colleagues, clients and customers. Employers may be hesitant to deal with unfit employees as swiftly as they should due to fears that their actions may give rise to claims of discrimination or unfair dismissal.
So what happens when an employer notices or suspects that an employee may be at risk of causing injury or harm to themselves or others in the course of performing their duties? Safety is essential but actions taken in relation to a potentially unfit employee must be reasonable and proportionate.
An employee may be routinely absent, may be seeking to return to work after a (non-work related) illness or injury, may have failed a routine physical assessment or may be displaying behaviour that raises concerns about their fitness to work.
It is reasonable to direct an employee to provide evidence of their fitness to perform their duties where there is a legitimate concern that an employee’s health is or may have become compromised.
It is unreasonable for an employee to decline to engage in such a process. An employer may not be willing to accept a personal assurance or undertaking about the employee’s fitness to work, or a medical report that lacks sufficient detail or is inconsistent with other evidence or observations.
Employers may request an employee’s authority to communicate directly with their treating doctor to clarify any issues or concerns regarding the employee’s capacity to perform their role consistently and safely. If an employee refuses to allow such consultation an employer can direct the employee to attend an independent medical assessment arranged by the employer.
If the employee refuses to comply with a direction to undergo a medical assessment and/or cannot or will not provide sufficient evidence to the employer to prove he or she is capable of safely and consistently performing their duties it would be reasonable for the employer to suspend or terminate the employment.
Tips for Employer’s:
a) Use employment contracts or policies to notify employees that in order to ensure they are fit to perform their role they may be required to undergo medical assessments or provide medical certificates when requested to do so.
b) If concern regarding an employee’s fitness to work arises, formally notify the employee of specific concerns held, how and why they have arisen and that the employee is at risk of termination if the employer cannot be satisfied that s/he is fit for work.
c) Invite the employee to provide any relevant information to assist the employer to determine whether the employee is able to safely and consistently perform his/her role.
d) Consider any information that is provided and whether it is reliable and satisfactorily demonstrates the employee can consistently perform their duties without posing a significant risk to any person’s health and safety in the workplace.
e) If necessary, request the employee to allow the employer to make further inquiries of the author of any medical report the employee has provided.
f) If the employee refuses to allow the employer to consult directly with their treating doctor, the employer may direct the employee to attend an independent medical assessment.
g) If the employee refuses to attend the assessment it would be reasonable to terminate the employment on the grounds that the employee has not clearly demonstrated s/he can safely perform his/her role.
h) If it is determined that the employee is not fit for work, either because they are not well enough to regularly attend work or are at risk of causing an injury in the workplace ask the following questions:
- Is there any training, treatment or other remedial action the business is willing to provide to the employee to restore their fitness to work?
- Could the business provide an alternative role and/or flexible working arrangements that the employee would be fit to perform?
- Is the employee able and willing to become fit to perform their duties?
If the answer to all of the above is “no” then it would be reasonable to terminate the employee because they are unfit for work.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.