In Australia there is a common law right for an employer to give a reasonable direction to an employee to undergo a medical assessment1. As with many other public sector jurisdictions, the ability to direct an employee to attend a medical examination (a health assessment) in the APS is provided in legislation, namely the Public Service Regulations 1999.
Direction to attend a medical examination
Under regulation 3.2 of the Public Service Regulations 1999, an agency head may, in writing, direct an employee to attend a medical examination, by a nominated medical practitioner, for the purposes of assessing the employee's fitness for duty. The ability to issue this direction can be delegated by the agency head to another person.
The regulation provides that the direction to undergo a medical examination can happen within a specified period, in circumstances where the agency head believes that the state of health of the employee:
- may be affecting the employee's work performance; or
- has caused, or may cause, the employee to have an extended absence from work; or
- may be a danger to the employee; or
- has caused, or may cause, the employee to be a danger to other employees or members of the public; or
- may be affecting the employee's standard of conduct.
An agency head may also direct an employee, in writing, to undergo a medical examination if the APS employee is to:
- be assigned new duties and the agency head believes that the state of health of the employee may affect the employee's ability to undertake those duties, or
- travel overseas as part of their employment.
In addition to directing an employee to undergo a medical examination, the regulation also provides that an agency head can direct the employee to provide a report of the examination within a specified period, or that the medical practitioner may give the agency head a report of the examination. The agency head can seek to obtain a copy of the report from the medical practitioner without seeking or confirming the agreement of the employee2.
Section 22(6)(e) of the Public Service Act 1999 allows agency heads to impose a health clearance as a condition of engagement. Regulation 3.1 of the Public Service Regulations 1999 provides the circumstances related to a health clearance as a condition of engagement.
Public Service Act 1999
Public Service Regulations 1999
Your agency has a duty of care (that is, a moral or legal obligation to ensure the safety and wellbeing of others) when it comes to your safety, health and wellbeing in the course of your APS employment.
Under the Work Health and Safety Act 2011, your agency must ensure that its ‘acts or omissions do not adversely affect the health and safety of other persons’3. Your agency must also provide a safe working environment and monitor your health and the conditions of the workplace to prevent injury or illness4, including both physical and mental health.
In some situations, your agency may need the recommendations of a health assessment to ensure that you are undertaking duties that are medically appropriate so that your agency can meet this duty of care under the Work Health and Safety Act 2011.
The Australian Public Service Commissioner's Directions 2013 also require that your agency head must put in place measures to ensure that your agency complies with all applicable work health and safety legislation. As an employee, you must take proper steps to support these measures, having regard to your duties and responsibilities5.
When used appropriately and effectively, health assessments are a valuable management tool. They provide your agency with an evaluation of your capacity to undertake your job without risk to your own or others' health and safety6. Without the ability to direct you to undergo a health assessment when the need arises, in some circumstances it would be difficult for your agency to meet its duty of care to you and other employees, and your agency may then be liable.
Health assessments can be used in cases where a physical or psychological health condition (or both) is newly acquired or where there is a change to, or a relapse of, an existing health condition or disability impacts or may impact your capacity to undertake your job.
A health assessment may be necessary:
- before your employment relationship starts (that is, as a condition of engagement)
- early on in your employment relationship, or
- at any stage during your employment relationship7.
There is no ‘one size fits all’ approach.
What are my responsibilities under the Work Health and Safety Act 2011?
You, and all employees within your agency, have obligations under the Work Health and Safety Act 2011. You have a duty to take reasonable care of your own health and safety at work and that of others who may be affected by your actions or inactions. You must:
- comply with a reasonable instruction given by your employer to allow your employer to comply with the Work Health and Safety Act 2011, and
- cooperate with any reasonable policy or procedure your employer has in place (and has notified to workers) relating to health or safety in the workplace8.
What is a ‘nominated medical practitioner’?
The Public Service Regulations 1999 prescribe that a nominated medical practitioner is a person who is:
- registered, or licensed, as a health practitioner under a law of a State or Territory that provides for the registration or licensing of health practitioners, and
- nominated by an agency head to assess the fitness for duty of an APS employee in the agency.
What is an extended absence?
The definition of an extended absence may be prescribed in your agency's policy on health assessments.
The Public Service Regulations 1999 provides examples of extended absences as:
- an absence from work of at least four continuous weeks, and
- a combined total of absences from work of at least four weeks within a 13 week period, whether based on a single or separate illness or injury.
Workers' compensation claims
If you sustain an injury due to, or during, your work, or if you consider that your employment caused or contributed to a disease or aggravated a disease, you are able to submit a claim for workers' compensation. For employees of the Commonwealth government, Comcare is the organisation responsible for making a decision on your claim.
If you submit a workers' compensation claim to Comcare, you must:
- promptly report to your agency the details of any accident, injury or disease that might be related to your work, and
- co-operate with your agency, case manager and rehabilitation provider to achieve a full return to work, if this is appropriate9.
If you are undertaking or have completed a rehabilitation program in relation to your workers' compensation claim, your employer must take all reasonable steps to provide you with suitable employment or to assist you to find suitable employment10.
Under sections 36 and 57 of the Safety, Rehabilitation and Compensation Act 1988 you may also be required to attend one or more medical assessments in relation to your workers' compensation claim. These assessments help Comcare to make a decision about your claim and your employer to make a decision about your capability to undertake a rehabilitation program.
If you have submitted or have a claim and you are required to undergo a medical assessment in relation to that claim, it is a good idea to let your human resources team (or your case manager) know that this is occurring. Sometimes, it will be necessary to undertake a health assessment with both Comcare and your agency.
Letting your agency know that you are undergoing Comcare health assessments will help your agency make informed decisions around any agency-initiated health assessment and help your agency to minimise the potential for ‘assessment fatigue’, stress or any other associated issues that may arise from attending multiple medical examinations in a short space of time.
For more information on workers' compensation claims, visit the Comcare website at www.comcare.gov.au.
2 Public Service Regulations 1999
3 Work Health and Safety Act 2011
4 Work Health and Safety Act 2011
5 Australian Public Service Commissioner’s Directions 2013
6 US National Library of Medicine, National Institutes of Health, Occupational and Environmental Medicine, 2007, Criteria and methods used for the assessment of fitness for work: a systematic review, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2092557/
7 US National Library of Medicine, National Institutes of Health, Occupational and Environmental Medicine, 2007, Criteria and methods used for the assessment of fitness for work: a systematic review, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2092557/