Know your rights – Medical Divulgence
The Services Union surveyed members at the end of 2021 and knowing what medical history and information you should divulge was identified as an issue.
As part of our commitment to our 30th Way – Mental Health and Wellbeing Campaign we are looking to support members as much as we can. We are committed to providing our members with the latest workplace resources to navigate your rights and entitlements as an employee. This resource will look at your rights when your employer requests medical history and information.
Requests for Medical Information
During your employment, there might be a time in which your employer may want to ask about your medical history. Requests for your medical history or information about a medical condition you may be experiencing, can often feel like an invasion of privacy and it can be difficult to draw a line between work and your private life.
There is no general rule regarding when you must provide information about your medical history and each request should be dealt with on a case-by-case basis. If you are asked to provide medical information – it’s important to have an Industrial Officer by your side.
Disclosure of Information
As an employee you are obliged to obey any lawful and reasonable direction provided to you by your employer. Failing to follow a reasonable and lawful direction might result in the termination of your employment.
A request for medical information is likely to be lawful and reasonable if it relates to your employer’s obligation to provide a safe workplace. Your employer may also require information to make changes to accommodate a worker with a disability.
Do I need to tell my employer why I was sick?
Generally, you do not need to give information to your employer about a condition which does not affect your ability to work. If you need to take sick leave, you do not usually have to inform your employer of the details of your illness or injury.
Although you must make sure that you:
- Notify your employer as soon as possible; and
- Meet any evidence requirements prescribed in your award or certified agreement.
To better protect your rights, you should also advise your employer of the expected period of sick leave.
What medical information must I disclose to my employer?
You may be obliged to tell your employer about your illness or injury where your ability to perform the inherent requirements of your job is affected. The inherent requirements of a job are the key tasks or skills needed to perform a role. You should be able to find this in your Position/Job Description.
If you feel you can return to work if your employer makes reasonable adjustments to your job, you have the right to request those adjustments. Your employer is obliged to make reasonable adjustments to accommodate your illness or injury. Note: if you request reasonable adjustments – it is likely your employer will request more specific information about your condition.
Do I have to see the company doctor?
It is your right to choose your own doctor for treatment purposes.
You may be required to attend a medical examination with another doctor as part of a worker’s compensation claim.
It may also be lawful and reasonable for your employer to direct you to see their nominated doctor in certain cases. For example, where you have requested reasonable adjustments or where your employer has a reasonable concern regarding health and safety.
If you do see your employer’s doctor, you should take a copy of your position description with the inherent requirements of your job listed. The medical assessment should only assess your ability to perform your pre-injury duties and the inherent requirements of your job.
Your employer is not entitled to request general information about your health.
Can my employer ask to speak to my doctor?
An employer may only speak with your doctor with your written consent. If you do not provide consent, your employer should provide you with the questions they wish to present to your doctor and in turn you may take this to your doctor to provide written responses to their questions.
My sick leave has run out. What if I get sick?
If you have used all your accumulated paid sick leave, you may be able to access annual or unpaid leave.
What do I do if I have been dismissed?
You do have options if your employer unfairly dismisses you because of your medical condition or because you have exercised a workplace right (for example, you took sick leave).
If you are dismissed, you may be eligible to make an application for Unfair Dismissal or General Protections (Dismissal). You only have 21 Days from when your dismissal takes effect to file either application – it is important you contact Services Connect on 3844 5300 as soon as possible if your employment is terminated.
What do I do if my employer discriminates against me?
If your employer discriminated against you because of your illness or injury you may be able to make a disability discrimination complaint.
Timeframes do apply, so it’s important that you contact Services Connect on 3844 5300 as soon as possible for further advice and information.