Q. Our company operates in the retail furniture business. We recently hired an employee who, during the recruitment process, indicated they did not have any medical condition which would prevent them from performing all of the tasks related to the job. During the interview, it was indicated to the employee the job involved lifting furniture and whether there was any physical reason they could not perform that function. The employee stated they were able to perform that work. A customer has complained that the employee refused to carry a small item of furniture to their motor vehicle because they had a bad back which was a consequence of work-related incident at the previous employment. The company considers lifting furniture as an important part of the customer service function of the position. It appears the question of medical history of the applicant was not asked as it was regarded as an invasion of privacy.  
Can the employer ask about an employee’s workers compensation history during an interview and can the employer terminate an employee who lied about their medical condition to obtain employment? 

A. There are a number of issues to consider in this situation. 

 

Interview 

Framing the questions properly will help alleviate any indication of discrimination by the employer on the grounds of physical or mental disability. For example, rather than ask whether the applicant has made a workers compensation claim, a more appropriate question may be “Do you have a pre-existing injury or medical condition or disability that would affect you from performing the inherent requirements of the job?“ If yes – any follow-up questions should detail what the condition is, any current restrictions on the applicant’s ability to perform the job and attempt to identify ways to accommodate the employee’s condition. 

Asking questions relating to workers compensation does not necessarily address the issue in any case. The employee may truthfully answer this question but may have a pre-existing injury or disability which may preclude them from performing the job but was not the subject of a workers compensation claim. 

 

Employment Contract

An employer may include a clause in their employment contract template which asks the employee to confirm that they have disclosed any relevant medical conditions which may affect their ability to perform the role. 

 

Privacy 

An employer may investigate issues in relation to job applicants if the employer can establish that the information sought relates to the inherent parts 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 to be addressed in this assessment would 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. Any investigation would have to carefully protect the privacy rights of the candidates and any testing should be carried out by qualified medical personnel. See X v The Commonwealth [1999] HCA 63. 

 

Conclusion

Employers can ask employees about relevant medical conditions that may impact their ability to safely perform their role. This can be discussed during the recruitment process, and a declaration can also be included in the contract of employment. Investigations into missed or dishonest disclosures can be investigated where they relate to the inherent requirement of the role, or pose a threat to the work health and safety of others.