Pre-employment health screenings (or medicals) are increasingly becoming commonplace in recruitment but are they lawful?

Medicals are commonly used to assist an employer to comply with the duty of care to protect the health and safety of employees and third parties – they’re done as a matter of ‘managerial prerogative’ in hiring. But what does the law say?

In certain industries, particularly the public service, prospective employees are required to undergo medicals to fulfil specific legislative requirements regarding work health and safety, as well as the prevention of disease and injury.

However, when it comes to general run-of-the-mill medicals, exercising caution is the key.

Employers need to be careful to avoid unlawful discrimination, the use of unnecessary medical information and the risk of conducting a medical when no assessment is needed.

An unlawful medical

Employers must, of course, comply with all state and federal anti-discrimination laws. For example, under section 15 of the Commonwealth Disability

Discrimination Act 1992, and under state-based anti-discrimination legislation, it’s unlawful to discriminate against an employee on the grounds of disability, including in circumstances where an employer is determining who should be offered employment.

However, discrimination may not be unlawful if the prospective employee is unable to carry out the requirements of the role because of a disability.

In Duncan v Kembla Watertech Pty Ltd [2011] NSWADT 176, the applicant alleged she was unlawfully discriminated against on the grounds of disability in relation to employment under section 49D of the Anti-Discrimination Act 1977 (NSW).

Duncan had accepted a job offer made to her by Kembla, who subsequently withdrew the offer and claimed the offer had been conditional on Duncan satisfying a pre-employment medical examination.

In its defence, Kembla raised the exception in section 49D(4) that the discrimination is not unlawful if the person would be unable to carry out the inherent requirements of the role because of the disability.

The Administrative Decisions Tribunal found that although, by Kembla withdrawing the offer, she had been discriminated against on the grounds of disability, within the meaning of the legislation, she was in fact unable to perform the inherent requirements of the role with reasonable safety to herself, such as site visits. Therefore, the exception in section 49D(4)(a) applied.

For this exception to apply there must be a causal relationship between the disability and the person being unable to carry out the requirements of the role.

Degrees of risk

The information obtained through a medical could be directly relevant to whether an applicant is fit to undertake tasks required in a role without being a reasonable safety threat to themselves, their colleagues or third parties, but employers should only use the necessary information to determine this.

Lessons from earlier cases, such as Vickers v The Ambulance Service of NSW [2006] FMCA 1232, warn that an employer cannot simply exclude a job applicant because complete safety cannot be guaranteed.

Risk in this context requires a consideration of the degree of risk and the consequences of its realisation, as Mason J expressed in CF Wyong Shire Council v Shirt [1980] 146 CLR 40 at [47]- [48].

The threshold to be used requires the employer to balance considerations including whether the risk posed by the disability allows an employee to perform inherent role requirements with ‘reasonable safety’ as discussed in X (name withheld) v Commonwealth [1999] 200 CLR 177 at [109].

Ultimately, the individual characteristics of each applicant must be considered on a case-by-case basis, as opposed to an employer applying a blanket policy of exclusion based on the results of a medical, as well as the inherent or essential requirements of the relevant position, which go beyond physical abilities.

Compliance with anti-discrimination legislation, as well as occupational health and safety obligations, is crucial for any employer, and ultimately medicals must be used responsibly, only as necessary, and for their proper purpose.