The fear of a discrimination claim alone often puts employers off asking applicants and current employees about their medical conditions.
However, it is lawful – and often a good idea – provided you comply with anti-discrimination and privacy legislation.
Complying with work health & safety legislation
Asking employees about their pre-existing medical conditions may not only be a good idea, but legally required for certain high-risk roles.
Employers have strict duties under work health safety legislation to ensure health and safety, so far as is reasonably practicable, by eliminating risks to health and safety.
For example, if employees will be engaged in manual labour, it is reasonably practicable to ask them to disclose any previous or pre-existing musculoskeletal injuries because they may be aggravated by the work.
The same goes for occupational specific diseases, such as asking mine workers to disclose any mine dust lung diseases.
In these sorts of high risk roles the employee should be asked to disclose any pre-existing medical conditions or injuries and undergo a pre-employment medical test.
Manage your workers’ compensation claims
Asking employees to disclose relevant pre-existing medical conditions means you can identify and take steps to prevent aggravating that injury. This will help ensure the safety of your employee and prevent a workers’ compensation claim.
Additionally, in some jurisdictions if a prospective employee fails to disclose a pre-existing medical condition when asked they will be ineligible for workers’ compensation.
For example, under the Workers’ Compensation and Rehabilitation Act 2003 (Act) in Queensland prospective employers should:
- Ask the prospective employee whether they have a pre-existing injury or medical condition in writing;
- Provide the prospective employee with information about the nature of the duties of the employment; and
- Notify the prospective employee that if they knowingly make a false or misleading disclosure, under section 571C of the Act, the prospective employee or any other claimant will not be entitled to compensation or to seek damages for any event that aggravates the pre-existing injury or medical condition.
If the employer does this, and the prospective employee knowingly makes a false or misleading disclosure, they will not be entitled to workers’ compensation for any event that aggravates the pre-existing injury or medical condition.
Don’t unlawfully discriminate
Prospective and current employees are protected from discrimination because of an illness or injury.
This means asking an applicant to disclose a pre-existing medical condition or injury and then declining to offer them employment on that basis will be unlawful, unless an exception applies.
There is an exception if the applicant cannot perform the inherent requirements of their role because of the pre-existing injury or medical condition, even with reasonable adjustments made by the employer.
This means that if an applicant discloses an illness or injury, that should only be a reason for declining to offer employment if it prevents the employee from performing the inherent requirements of the role after the employer has considered whether it can make any reasonable adjustments to accommodate the illness or injury.
For example, it is unlikely to be unlawful to decline to offer a labourer a role if they cannot lift anything over 10kgs, assuming that is an inherent requirement of the role that cannot be overcome with any reasonable adjustments.
But it is likely to be unlawful to decline to offer a contracts administrator a role on the same basis.
In Queensland, Victoria, the Northern Territory and New South Wales, asking someone about their protected attributes is presumed unlawful unless the company can prove the information was reasonably required for a purpose that does not involve discrimination.
Comply with the Privacy Act
The Australian Privacy Principles (APPs) set out in the Privacy Act 1988 regulates how personal information, including medical information, can be dealt with.
Employers are exempt from the APPs if the information is about an employee and directly relates to the employment relationship – but only after they collect the information.
This means employers must still comply with the collection requirements of the APPs for all personal information, including questions about an employee’s pre-existing medical conditions or injuries.
These requirements include informing the employee of the purpose of the collection (for example, to ensure they can safely perform their role), the consequences of not providing the information (for example, they will not progress in the recruitment process) and information about the employer’s privacy policy. This is not an exhaustive list – the collection requirements are extensive.
The employee exemption does not apply to future employment relationships. This means information collected from prospective employees who are subsequently unsuccessful in their application for a role will not be covered by the exemption, and all of the APPs will apply to that information (including how the information is used, stored and otherwise dealt with).
What to remember?
You can, and in some cases should ask employees about their pre-existing medical conditions.
Understanding your employees’ pre-existing medical conditions is valuable to developing a work environment that avoids aggravating those conditions. This helps to ensure that you are complying with your health and safety obligations as an employer and assists in the management and avoidance of workers’ compensation claims.
When handling personal information, it is essential to comply with relevant anti-discrimination and privacy legislation. Compliance with this legislation requires a clear connection between the information collected and the requirements of the employee’s role. Navigating these risks requires a degree of common sense – if a question is not relevant to the inherent requirements of the role or your relationship with the employee, do not ask it.
Employers who shy away from the collection of medical information to avoid legal complications may unwittingly find themselves faced with much larger issues down the track.
