Q. Our organisation requires job applicants to undergo a pre-employment medical examination. This is intended to ensure candidates are fit to perform the role safely. A job applicant has challenged this requirement as an invasion of privacy and discriminatory on the basis of disability. Do pre-employment medical examinations breach privacy or discrimination law?

Can an employer take action if an employee provides false or misleading information in a medical assessment?

A. Whether a pre-employment medical examination complies with the relevant equal opportunity or privacy law will depend on a number of factors, including the nature of the job, whether a medical condition is relevant to the performance of the job, and what the employer does with any information obtained from a medical examination. 

The applicant’s consent would be required before any examination or test is conducted. The results of any pre-employment medical examination are protected by privacy law and, in some jurisdictions, specific health information law. 

 

Inherent requirements of the job 

An employer may request medical information or require an examination only if the information sought relates to the inherent requirements of the job. 

The High Court found that it is permissible to have regard to the health and safety of others when considering the requirements of the employment. Issues that would be addressed in any pre-employment medical assessment include: 

  • the degree of risk to others 

  • the consequences of the risk being realised 

  • the employer’s legal obligations to co-employees and others 

  • the function which the employee performs and the organisation of the work. 

 

Discrimination law considerations 

There are exceptions where it is not unlawful for the employer to discriminate against a person. The main exceptions that could apply in this case are: 

  • where the person’s medical condition prevents them from performing the inherent requirements of the job, or 

  • where a person with a disability requires special services or facilities to do their work and the provision of those special services or facilities would cause unjustifiable hardship to the employer, or 

  • where otherwise discriminatory acts are reasonably necessary to promote health and safety. 

The Fair Work Act 2009 (Cth) also prohibits adverse action against prospective employees based on protected attributes, including disability.

 

Withdrawing a job offer following a medical 

Employers may withdraw a conditional offer of employment if:

  • the candidate is unable to perform the inherent requirements, and

  • this is supported by objective medical evidence

In Duncan v Kembla WaterTech Pty Ltd, the tribunal found no unlawful discrimination where:

  • the role had significant physical demands

  • the medical evidence showed a high risk of injury

  • accommodating the employee would cause unjustifiable hardship

However, decisions must be:

  • evidence-based, not assumptions

  • individually assessed, not based on generalised risk

 

Privacy obligations

The Privacy Act 1998 (Cth) regulates the collection, use and disclosure of personal information and sensitive information, including the workplace. When collecting personal information, the employer:  

  • must take reasonable steps to ensure the individual is aware of why the information is collected  

  • that the individual can gain access to the information 

  • the types of third parties to whom the information may be disclosed 

  • any law requiring the collection of the information 

  • the main consequences (if any) to the individual if the information is not provided, and 

  • information about complaints and individuals’ rights regarding accessing and correcting their personal information.  

 
State and territory law 

It should be noted that health records legislation also exists in some jurisdictions which do not exempt employee records. Legislation in Victoria and the Australian Capital Territory requires an employer to comply with rules relating to notification, collection, storage, use and access, even if the health information is an employee record. 

 

Bottom line 

As with any company policy, it should be clear and unambiguous and understood by the job applicants and also the designated company representative with the responsibility for recruitment, or any employee within the organisation who deals with personal information. The employer should ensure the policy complies with equal opportunity laws and the relevant privacy law, or health information law.