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Health Information Policy

Version 1.0 Updated 13 Mar 2018
Policy Manage

Who can use this policy?

This policy can be used by all employers.

Commentary

The components of each job will typically include requirements which are essential to the performance of the role. Often the essential requirements of a job can be satisfied only with the appropriate qualifications, skills or experience. In some cases, health will be a critical consideration in the assessment of whether a person can fulfil the essential requirements. In particular, an employer is entitled to be satisfied that a person can perform the job without risk to health and safety of themselves and others.

As long as there is a relevant connection with the essential requirements of the job, the collection of health information about a job candidate (which may include an existing employee) is a legitimate step in the recruitment and selection process. Unless there is a relevant connection, employers should avoid collecting health information about job candidates as there are legal risks — particularly under disability discrimination law — where irrelevant information is relied upon by the employer.

Under disability discrimination laws, it is unlawful to discriminate in recruitment on the basis of an applicant’s disability. Disability is broadly defined and it includes intellectual, psychiatric, mental and physical disabilities. A notable exception to the prohibition applies where: 

  • the prospective employee is not able to perform the inherent requirements of the job; and

  • providing the required services or facilities to enable the prospective employee to carry out the inherent requirements of the job would impose an unjustifiable hardship on the employer.

 

These steps reflect good practice and risk management:

  • Create a detailed job description so that prospective employees understand the inherent requirements of the role. This position description can later be used to assess (if necessary) whether a person can safely perform the inherent requirements of the role, particularly taking into account any medical/health issues which the prospective employee may have.
  • Request health/medical information or a pre-employment health/medical assessment only if it relates to the inherent requirements of the position. Do not request disclosure of ‘general health’ matters, rather just health information that relates to the prospective employee’s ability to perform the inherent requirements of the position.
  • Limit pre-employment medicals to ‘serious contenders’ for the position.
  • Obtain written consent from the prospective employee to undergo a pre-employment medical.
  • If a prospective employee has medical/health issues, consider if any ‘reasonable accommodation’ can be made to enable the prospective employee to perform the inherent requirements of the job. If such accommodation can be made, consider whether doing so would impose an unjustifiable hardship.

 

Privacy and confidentiality 

Information about a person’s health should be handled in a confidential and sensitive manner. The information should be confined to those who have a reason to know and it should be kept secure. If the information is about a person who is not an employee (which is likely to be the case with most job candidates), the information should be handled in accordance with the Australian privacy principles regarding personal information contained within the Privacy Act 1988 (Cth).
 
The Privacy Act 1998 (Cth) protects personal information about individuals handled by some organisations. The Privacy Act 1998 (Cth) contains principles or rules about collecting, using and disclosing personal information.  If you are unsure whether the Privacy Act 1998 (Cth) applies to your business, you should seek legal advice.

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