When you can require an employee to have a medical examination

A forklift operator has been off work for six weeks with a back injury. Their medical certificate says they are fit to return, but you are not convinced, and your insurer is not convinced either. Can you simply tell the operator to attend an examination with a doctor you choose, and keep them off the site until they do? The short answer is that you can, in the right circumstances. The longer answer is that the circumstances are narrower than many employers assume, and getting them wrong can turn a sensible fitness check into an unfair dismissal or discrimination claim. This article sets out the routes that give you a power to require a medical examination, the test a direction must pass, and the traps to avoid.

Why you have an interest in an employee's fitness at all

The legal foundation for requiring a medical examination is your duty of care, not a general right to pry into your staff's health. In New South Wales, s 19 of the Work Health and Safety Act 2011 (NSW) requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers while they are at work, including by providing and maintaining safe systems of work. Substantially similar duties apply under the work health and safety legislation of every other state and territory.

That duty is what makes your interest in an employee's fitness legitimate. If you have reason to doubt whether a worker can safely perform the inherent requirements of their role, allowing them back into a safety-sensitive position can itself breach the duty. A medical examination is one of the tools you can use to manage that risk.

But the duty cuts both ways. It justifies an examination only where fitness genuinely matters to the work, and it does not authorise you to collect an employee's general health information for its own sake. Every route to requiring an examination below is subject to that limit.

Route one: a term in the employment contract or enterprise agreement

The cleanest route is an express term in the employment contract. For new employees, drafting the clause now is straightforward. A well-drafted term should cover the circumstances in which an examination can be required, such as return from injury or extended sick leave, a performance or safety concern, or a fitness-for-duty check in a safety-critical role. It should also state who pays, how results will be handled, and what happens if the employee refuses.

For existing employees the position is different. You cannot unilaterally add a term to a contract that is already on foot. Varying the contract requires the employee's agreement, and a variation of this kind should be documented rather than implied. If you have an enterprise agreement, the topic can be dealt with there instead, which has the advantage of applying consistently across a workforce.

If neither document deals with the topic, the fallback is a direction, which we come to below.

Route two: a power in industry-specific legislation

In safety-critical industries, dedicated legislation and the safety systems that sit under it can support a direction to attend a medical examination. The leading illustration is the coal mining case Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.

Mr Grant had injured his shoulder at work on several occasions, had surgery, and returned in April 2013 with medical certificates from his treating doctor and surgeon stating he was fit to return to his normal duties as a boilermaker. BHP was not satisfied with the certificates and directed him to attend a functional assessment with its nominated medical specialists before he would be assigned duties. Mr Grant refused, was sent home, refused a rescheduled appointment, and was ultimately dismissed. The Fair Work Commission and its Full Bench held the dismissal was not unfair: refusing a lawful and reasonable direction is misconduct, and the direction was lawful and reasonable in the circumstances. Mr Grant's challenge in the Federal Court was dismissed.

The case is often cited, including in the article this piece replaces, as authority that s 39 of the Coal Mining Safety and Health Act 1999 (Qld) gives employers an express right to direct employees to a medical evaluation. That overstates the position. In its current form, s 39 of that Act is a general safety duty on persons at a mine, not a stand-alone power to compel examinations. The point the litigation actually turned on was whether the direction was lawful and reasonable given the contract, the enterprise agreement, and the mine's safety and health management system, with the employer also invoking the Act as context. The lesson for you is practical: if you operate in a regulated industry, check whether your sector's legislation and your own safety management system already support fitness assessments before you draft anything.

Route three: the workers compensation scheme

If the examination relates to a workers compensation claim, the statute may settle the question in your favour. Under s 119 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), a worker who has given notice of an injury must, if required by the employer, submit to examination by a medical practitioner that the employer provides and pays for. A worker receiving weekly payments can also be required to submit to examinations from time to time.

The teeth of the provision are in the consequence of refusal: if a worker refuses or obstructs the examination, their right to recover compensation or to receive weekly payments is suspended until the examination takes place. The employer must also reimburse the worker for wages lost and reasonable travel expenses incurred in attending a required examination, under s 125 of the same Act.

Comparable machinery exists in the workers compensation legislation of the other states. The practical point is that once a claim is on foot, the examination question is usually settled by the statute rather than by argument, and the statutory scheme supplies the rules on cost, frequency and consequences. It does not, however, cover the employee who is simply off sick with no claim in play. For that situation you need one of the other routes.

Route four: a lawful and reasonable direction

Where no contract term, agreement or statute applies, you can still direct an employee to attend a medical examination, provided the direction is lawful and reasonable. This is a well-established incident of the employment relationship: employers may give lawful and reasonable directions, employees must comply, and a refusal can be misconduct with disciplinary consequences up to and including termination.

A direction to attend a medical examination will generally satisfy the test where there is a genuine indication of need and the demand is reasonable in all the circumstances. The factors that matter, all of which featured in the Grant litigation, include:

Genuine indication of need: for example, prolonged absences, absences without explanation, or a return to work after a significant injury.
Legitimate concerns about others: whether the employee's condition could affect the safety of co-workers, customers or the public.
The nature of the workplace: whether the role is safety-sensitive or the industry is inherently dangerous.
The purpose of the assessment: whether it is aimed at fitness for the inherent requirements of the role rather than general health.
The consequences of refusal: whether the employee has been told that failing to comply may lead to disciplinary action.

The converse matters just as much. An examination demanded without a genuine basis, or as part of a blanket policy with no justification, is unlikely to be reasonable. If you then discipline an employee for refusing such a demand, you have handed them the facts of an unfair dismissal or adverse action claim. The direction route works only when the underlying concern is real and the demand is proportionate to it.

The reasons you must keep the examination tied to the role are legal, not just stylistic. The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against an employee on the ground of disability in the terms and conditions of employment, by dismissal, or by subjecting the employee to any other detriment. Requiring a medical examination is not discrimination in itself, but how you design and use it can be: targeting an employee because of a known disability, asking questions unrelated to the job, or acting on results to sideline the employee without considering adjustments are all ways of crossing the line.

The Act's exception for inherent requirements, in s 21A, is the frame you should work inside. It is not unlawful to act on a disability where the person would be unable to carry out the inherent requirements of the particular work even with reasonable adjustments. That is why the assessment must be confined to what the role actually demands, and why a restriction identified in an examination should be met first with a consideration of adjustments, not with an assumption that the employee cannot return.

Privacy is the second trap. A medical examination produces health information, which attracts special protection under Australian privacy law. Where the route to the examination is consent rather than compulsion, the employee is entitled to decline, and you should obtain written agreement covering what the examination will involve, who will see the results, and what you will do with them. Keep results confidential, restrict access to those who genuinely need to know, and use the information only for the fitness-for-work purpose for which it was collected. If you operate in a state with its own health-records privacy legislation, such as New South Wales, that regime may add requirements on top of the Commonwealth scheme, so it is worth confirming the position before you build a medical-examination procedure.

Running the examination properly

When you do require an examination, the mechanics determine whether it stays lawful. Consider the following:

Choose the right practitioner: an occupational physician or a specialist with knowledge of both the employee's condition and the demands of the role, and independent of the treating doctor.
Brief the practitioner in writing: set out the inherent requirements of the role, the duties involved, any emergency or high-stress tasks, and the specific questions you need answered, such as whether the employee can return, with what restrictions, and by when. Share relevant medical history only with the employee's consent.
Pay for it: if you require the examination, you should meet the cost, and in the workers compensation context that is the statutory position.
Move promptly: arrange the examination as soon as possible after the need arises, and keep the employee informed at each step about what you are telling the practitioner and what the outcome was.
Give the employee a chance to respond: if the results raise concerns, allow the employee to address them, including by providing their own medical opinion, before you make any decision.
Protect the results: store them securely, restrict access, and do not disclose them to the wider team.

How an employment lawyer can help you require examinations safely

The judgement calls in this area are exactly where professional help earns its keep. A lawyer can draft the contract or enterprise agreement term so it covers the circumstances, costs and consequences of a required examination. They can review your industry's legislation and your site's safety management system to confirm whether a fitness-assessment power already exists. They can draft the direction letter and the briefing letter to the practitioner, so the examination is confined to the inherent requirements of the role. And if an employee refuses, they can help you assess whether discipline or termination is defensible, and what exposure you face to unfair dismissal, adverse action and discrimination claims. Getting a refusal handled badly is the most expensive mistake in this area, and it is worth a conversation before it happens, not after.

The line between asking and directing

The single point that matters most is the difference between asking and directing. If you ask, the employee can say no, and you have no power to compel. If you direct, you need a genuine basis, a reasonable demand, and a purpose tied to the inherent requirements of the role, and refusal can then be treated as misconduct. The employers who come unstuck are the ones who blur the two: they demand an examination without a lawful foundation, or they use a legitimate direction as cover for a fishing expedition into an employee's general health. Either way, the employee walks away with a claim and the employer walks away wondering how a sensible safety measure became a legal problem.

To summarise the key points: you have a statutory interest in employee fitness through your work health and safety duty of care. You can require a medical examination through an express contract or enterprise agreement term, through industry-specific legislation, through the workers compensation scheme once a claim is on foot, or through a lawful and reasonable direction supported by a genuine indication of need. The examination must be confined to what the role requires, conducted with respect for privacy and consent, and handled so that the results are used fairly and confidentially. If you are unsure whether your circumstances justify a direction, take advice before you make the demand.