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How it's done

Key principles to remember

1. Lawful, reasonable and appropriate

A direction to undergo a health assessment must be issued responsibly, in good faith and in a way that is consistent with the APS Values, the APS Employment Principles and the Code of Conduct. All APS employees are bound by the requirements of the Values, the Principles, and the Code and must, at all times, behave in a way that upholds these requirements.

A direction to undergo a health assessment must also be lawful and reasonable . That is, the direction must be based on a genuine indication that there is a need for the employee to undergo the assessment[15].

Lawful direction

'A direction to an APS employee can be lawful if it involves no illegality and if it is reasonably adapted to protect the legitimate interests of the Commonwealth as an employer or to discharge the obligations of the Commonwealth as an employer. Also, the direction must be reasonable in all circumstances[16].'

Administrative Obligations in the Australian Public Service, Australian Law Reform Commission,

Reasonable direction

'Common law permits an employer to direct an employee to attend a medical assessment provided that the direction is reasonable. The question of whether a direction is reasonable will always be a question of fact, as will the question of what are reasonable terms for the undertaking of the medical assessment[17].'

For example, it may be unreasonable to require an employee to undergo a psychiatric assessment for a wrist injury.

Go to the Doctor! Directing an employee to attend a medical assessment, Ashurst Australia

A decision to direct an employee to undergo a health assessment also relies on a significant degree of personal judgment, and these decisions must be made by an appropriate delegate. Your agency's policy should detail who has the delegation to make these decisions.

In weighing your agency's options consider:

  • what your agency is trying to achieve through a health assessment
  • timeframes
  • the desired outcome, and
  • whether a health assessment is an appropriate means of achieving these objectives.

If you are the appropriate delegate, you should also consider whether, in making your decision, you have met your requirements (such as your duty of care) under legislation. A decision to direct an employee to attend a health assessment is reviewable.

Right of review

Under section 33 of the Public Service Act 1999, employees have a right of review of actions or decisions that relate to their APS employment. This includes the direction to undergo a health assessment.

If an employee would like to seek a review of the decision to direct them to undergo a health assessment, they must apply to the agency head for review in the first instance. When an agency receives a valid review application, it is required to:

  • review the action and attempt to resolve the employee's concern
  • advise the employee in writing of the outcome; the reason for the decision; and any action the agency intends to take, and
  • advise the employee of their right of review by the Merit Protection Commissioner.

If the employee is dissatisfied with the outcome of the agency's review, or the agency has advised the employee that the matter is not reviewable, the employee can make an application for a secondary review to the Merit Protection Commissioner.

There are also a number of circumstances, in which an employee can make a review application to the Merit Protection Commissioner in the first instance. These are:

  • for review of an agency decision that an employee has breached the APS Code of Conduct and/or of the resulting sanction
  • if the employee's agency head was directly involved in the relevant action or decision
  • where it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the review application, or
  • where the employee claims that the relevant action or decision is victimisation or harassment because of having made a previous application for review.

Time limits apply to review of actions.

Your agency will also have a policy and procedures that deal with review of actions. You can obtain a copy of this from your human resources team.

If you need advice on ethical decision making, contact the Australian Public Service Commission's Ethics Advisory Service on 02 6202 3737 or by email to ethics [at] apsc.gov.au.

2. Trust, respect and open communication

When an individual's personal health circumstances intersect with their employment, it gives rise to complex manager responsibilities, including having difficult—but necessary—conversations. Fostering good working relationships, as part of your usual management practices, is key.

Good relationships are built on trust, open communication and respect. This doesn't just happen—it requires work! As a manager, you need to be aware of how you interact with others, and the messages you project, either purposely or inadvertently. Take time to consider your:

  • body language
  • listening skills
  • eye contact and attentiveness
  • assertiveness or timidness[18].

Support ability to work

Managers should support employees of all abilities and personal circumstances to participate in work. People may require different levels of support at different times.

  • Seek to understand issues that may impact on your employees' ability to work and make reasonable adjustments to accommodate these.
  • Foster flexible and supportive work teams.
  • Support ill or injured employees to return to work.[19]

Working Together: Promoting mental health and wellbeing at work, Australian Public Service Commission and Comcare

While an employee must be advised in writing of the direction to undergo a health assessment, it is also good practice for you, along with your human resources team, to speak to the employee directly about the decision and the reasons for the health assessment. It is good practice for this conversation to occur before the written direction to undergo the health assessment is given.

You can prepare by talking with your human resources team for advice on how to have a conversation of this nature. You should also have a member of your human resources team attend.

Health assessments—A four step approach to communication

Step 1: Make contact

  • Arrange a meeting time (in person or over the phone) and give the employee advanced notice, including on what will be discussed.
  • Allow sufficient time and choose a suitable location for a confidential discussion.
  • Give the employee the opportunity to have a support person with them.
  • Prepare—work out what you want to say and what you want to achieve. Talk to your human resources team or your Employee or Manager Assistance Program.
  • Have a firm understanding of the health assessment process and your agency's policy.

Step 2: Outline the process

  • Show your usual concern and empathy, appropriate to the circumstances.
  • Focus on the purpose of the health assessment.
  • If it is necessary, state your observations about the employee's behaviour or functioning in the workplace.
  • Explain the health assessment process, the reasons and the potential outcomes, in line with your agency's policy.
  • Listen and respect the employee's right to respond to your observations. Ask questions.
  • Mutually define the issues and discuss.

Step 3: Offer support

  • Discuss roles, responsibilities and expectations, within the context of your agency's policy. Detail how you will support the employee.
  • Give sufficient time for the employee to ask questions. Listen carefully and be attentive.

Step 4: Commit to action

  • Define and commit to clear, specific steps following the health assessment.
  • Commit to follow-up at an agreed time (for example, follow-up with the employee in a week).

If a work relationship deteriorates significantly, you should take immediate action to resolve the issue so that it does not pose harm to employees involved.

Staying in touch

Stay in touch, particularly if the employee is off work, to maintain a connection with the workplace[20]. Ask the employee how they would like to maintain contact with the workplace, for example, by phone, email, in person or through another team member.

If your relationship has become strained you can do this through a contact in your human resources team.

3. Privacy

Under the Privacy Act 1988, an individual's health-related information is considered both personal and sensitive and must be kept confidential and private. When an employee discloses their health condition to you in a work context, this information should not be shared with anyone else without the employee's consent.

Understanding an employee's right to—and potential concerns about—confidentiality, as well as being able to maintain the employee's trust, is essential when managing situations involving an employee's health at work. Talk to the employee about who will have access to their personal information, why the information is being collected and how it will be used.

If you have a genuine concern about a health and/or safety risk, such as harm to an individual, including the employee, you should seek assistance from your human resources team, Employee or Manager Assistance Programs or emergency health services[21].

The Public Service Regulations 1999 allow a copy of the report from the health assessment to be provided to the agency head without the employee's agreement. This is permitted under the Australian Privacy Principles, because 'the collection of the information is required or authorised by or under an Australian law or a court/tribunal order'[22].

In most cases, only the employee, your human resources team (or case manager), and the nominated medical practitioner will have access to the health assessment report, unless the employee agrees otherwise. Who will have access to the employee's report should be outlined in your agency's health assessment policy.

When advising the employee in writing of the health assessment, your agency should also provide the employee with a collection notice explaining why the information is being collected and how it will be used (including if the information is to be provided to other people) and stored. Creating, storing and retaining proper records in relation to administrative actions concerning a person's employment is critical.

Workplace bullying and harassment

While rare, there are cases where APS employees have reported feeling bullied either because they have been directed to undergo a health assessment, or they have been directed to attend a health assessment as a response to separate claims of bullying.

Workplace harassment and bullying is unacceptable and is not tolerated in the APS. The APS Code of Conduct is explicit in its requirement that all APS employees 'must… when acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment.' It may also be unlawful under anti-discrimination legislation (such as sexual harassment or bullying related to a disability)[23].

Bullying and harassment are health risks in their own right and can also exacerbate existing conditions. An agency's duty of care when it comes to employees' safety, health and wellbeing in the course of their APS employment applies to situations of workplace bullying and harassment in the same way it applies to other workplace health and safety risks.

If an employee reports experiencing bullying or harassment, these claims should be taken seriously, in accordance with your agency's policy.

How do health assessments work in practice?

Every case that involves an employee's health condition and their work is different. There are a range of variables, including the employee's personal circumstances, their health condition and how it interacts with their work, as well as the agency you work in and how the process is managed.

Is a health assessment the best approach?

As a manager, you have a range of tools available to help you to support employee health and wellbeing in the workplace. Health assessments are just one of these tools. Depending on the employee's circumstances, what your agency is trying to achieve and the desired outcome, a health assessment may—or may not—be the most appropriate way of supporting an employee with ill health.

A list of the tools available to managers to support employee health and wellbeing is included under 'Useful Tools' in this guidance.

Deciding on the need for a health assessment relies on a significant degree of judgement and will depend on what your agency is trying to achieve and the desired outcome.

As a manager, you should be aware that, where an employee has made a workers' compensation claim, they may have attended a number of medical examinations and should take that into consideration before arranging an agency-initiated health assessment. It is also possible that the medical information gathered for these purposes would be sufficient to satisfy the workplace requirements, without the need for the employee to undergo an additional health assessment. Talk to your agency's human resources team or the employee's case manager.

This will help to minimise the potential for 'assessment fatigue', stress or any other associated issues that may arise from undergoing multiple medical examinations in a short space of time.

If one or more of the circumstances prescribed in Regulation 3.2 of the Public Service Regulations 1999 arise, an agency may decide that, for an employee's own health and/or safety and for the health and/or safety of others around them, the employee should undergo a health assessment.

In most cases, the health assessment process will be co-managed by the employee, you and the human resources team. Depending on the particulars of the case and your agency's policy, the employee may be assigned a case manager.

Management tools for health and productivity in the APS

Medical certificates 

If an employee is experiencing health difficulties that are affecting their capacity to perform their duties, you can discuss with the employee whether their GP has given them any work-related medical advice that might help you to introduce workplace supports or adjustments based on their medical condition. The employee can ask their GP for a medical certificate that provides information on work capacity to then enable the workplace to make reasonable adjustments.

Case conferencing with treating practitioners

Sometimes, however, medical certificates may not provide a full picture of an employee's capacity to perform certain tasks.

A face-to-face rehabilitation case conference is not a medical consultation but a work-focused conversation (including on duties the employee may be able to perform, any barriers in the workplace and any reasonable adjustments that could be introduced), independent of any consultations between a doctor and an employee. A case conference can be facilitated by your agency's human resources team or case manager. The Royal Australian College of Physicians considers case conferencing to be an essential part of a proper process to ensure that ill or injured employees receive appropriate support.

Evidence has shown that case conferencing can align thinking, address misconceptions, and open communication channels. It is vital for the employer to be actively involved[24].

Effective case conferencing involves:

  • The participation of the employee, employer, treating medical practitioner and any other relevant parties, which may include a support person for the employee.
  • The employee's informed consent to the conference and to the participation of each attendee.
  • Respect for the employee's right to confidentiality and procedural fairness.
  • A clear separation from any medical consultations.
  • Written information available for doctors, employees and employers to explain the case conference, what it may cover, and how it differs from a medical consultation.

Your agency's workplace rehabilitation provider can also help managers to make reasonable adjustments. This includes modifying the work (for example, duties, hours or workload) and implementing strategies to help the employee manage their health and participate in work. 

Before the employee's health assessment

Your agency should have its own policy on health assessments, which will influence the process you follow. This policy should include information about who makes health assessment decisions and when, the process the agency takes for nominating a medical practitioner and what the agency will do with the health assessment report.

A checklist to assist you with a health assessment process is included under 'Useful Tools' in this guidance.

Your agency (usually the human resources team, in accordance with your agency's policy) will need to:

  • Select a medical practitioner to conduct the health assessment —depending on the circumstances, this may be the employee's own treating practitioner (that is, their general practitioner (GP) or specialist) or it may be more appropriate to use an independent medical practitioner. Your agency's policy should detail how a medical practitioner is selected. The medical practitioner must be appropriate to the medical condition.
  • Arrange the health assessment appointment with the selected medical practitioner and provide the details of the assessment to the employee.
  • Specify a period in which the employee must undergo the health assessment. However, the employee must be given a reasonable opportunity to attend. If they are unable to attend, they will need to let you and the human resources team know—including the reason they are unable to attend—so that the appointment can be rescheduled. If there are any costs associated with late cancellations, employees should be made aware of who will cover those costs.

You and your human resources team will usually work together to develop a set of questions for the medical practitioner about the nature of the employee's work and the work environment and how this might intersect with their health condition. It may also be appropriate to include questions on:

  • alternative suitable duties, if there is work the employee is unable to do
  • reasonable adjustments the workplace might need to make
  • expected timeframes around the employee's recovery
  • the employee's capacity to participate in normal work practices (including performance management processes), and/or
  • any other information necessary to support the employee to stay at or return to work.

As the employee's manager, you will be best placed to provide:

  • context on the employee's job
  • the duties the employee is required to perform
  • the work environment (including any physical and/or psychological demands), and
  • detail on any reasonable adjustments that may be available.

Any information you provide to the medical practitioner can be accessed by the employee.

If the health assessment is not being conducted by the employee's GP or specialist, it may be appropriate to contact the GP or specialist let them know that a health assessment is being organised. This also gives the GP or specialist the opportunity to provide any necessary medical context for the health assessment. When the employee's GP or specialist is aware of and understands the health assessment process, they can become an important part of the employee's support network.

It is a good idea to keep the questions to a minimum and keep in mind the purpose of the health assessment—consider the specific information the agency needs to know.

The employee can take a support person with them to their assessment. This person is there to provide support, but they cannot participate in or comment on the assessment process.

During the health assessment

What happens at the health assessment will depend on the particulars of the employee's case. Generally, the medical practitioner will ask the employee some questions, review any supporting documentation and conduct a medical examination. Based on this, the medical practitioner will produce a report from the assessment.

After the health assessment

After the assessment, your agency will usually receive a copy of the report directly from the medical practitioner. The employee is also entitled to a copy of this report.

It is unlikely that you, as the employee's manager, will receive a full copy of the health assessment report , unless your agency's policy specifies otherwise. Instead, your human resources team will provide you with a summary of the medical advice and any recommendations for reasonable adjustments related to the employee's capacity to do their job. You can use this summary to make arrangements for the necessary adjustments and/or develop the employee's condition management or return to work plan.

You must consider all of the relevant medical advice from the health assessment and comply with any specific medical restrictions. The employee must also comply with the medical advice.

Any adjustments, restrictions or changes that have been implemented on the basis of medical advice from a health assessment should remain in place until they are reviewed by a medical practitioner.

What if the employee doesn't agree with the health assessment outcome?

If an employee doesn't agree with the outcome of their health assessment, you should encourage them to notify you and the human resources team of their concerns in writing. The employee should detail why they disagree with the assessment, and include any evidence that supports their claims.

You and your human resources team will need to take this into account when considering the case. If the employee raises issues that warrant further consideration or that may change the outcome of the health assessment (for example, new or changed health circumstances), you may need to seek additional input from the medical practitioner.

[15] Maurice Blackburn, Dealing with directions to attend medical examinations, www.mauriceblackburn.com.au/about/media-centre/newsletters/employment-industrial-law/issue-16-2013/dealing-with-directions-to-attend-medical-examinations/

[16] Australian Law Reform Commission, Administrative Obligations in the Australian Public Service,  www.alrc.gov.au/publications/12-administrative-obligations-australian-public-service/background

[17] Ashurst Australia, Employment Alert, 2013, Go to the Doctor! Directing an employee to attend a medical assessment, www.ashurst.com/doc.aspx?id_Content=9643

[18] Queensland Government, Managing work relationships, www.qld.gov.au/jobs/balance/pages/relationships.html

[19] Australian Public Service Commission, 2013, Working Together: Promoting Mental Health and Wellbeing at Work, www.apsc.gov.au/publications-and-media/current-publications/mental-health

[20] Australian Public Service Commission, 2013, Working Together: Promoting Mental Health and Wellbeing at Work, www.apsc.gov.au/publications-and-media/current-publications/mental-health

[21] Australian Public Service Commission, 2013, Working Together: Promoting Mental Health and Wellbeing at Work, www.apsc.gov.au/publications-and-media/current-publications/mental-health

[22] Australian Privacy Principles, APP 3.4(a) http://www.oaic.gov.au/privacy/privacy-resources/privacy-fact-sheets/other/privacy-fact-sheet-17-australian-privacy-principles

[23] Australian Public Service Commission, Respect—Building a positive work environment

[24] Vocational Rehabilitation Case Conferencing, The Royal Australasian College of Physicians, Australasian Faculty of Occupational and Environmental Medicine; June 2013. http://www.racp.edu.au/index.cfm?objectid=2735E355-C737-9494-1AF0D1C8D5E...