Requesting an employee’s medical history can be a tricky conversation. While some people might be reluctant to reveal their personal health information, there are some instances where disclosure is necessary for compliance and their safety.

Discussing your health issues with a stranger is not a prospect that many people would relish. When that stranger is a potential employer assessing you for a role you’re excited about, the thought of sharing sensitive information with them can feel even more daunting.

The dilemma of whether or not to disclose medical information to an employer can add significant stress to the application process, particularly for candidates living with an ‘invisible’ disability.

While health issues can be a touchy subject, both candidates and employers have legal obligations to consider how these issues might impact the candidate’s ability to fulfill the requirements of the role.

However, according to legal expert Will Snow, Employment and Workplace Safety Partner at Finlaysons, not all of these cases are black and white.

When is it necessary for candidates to disclose medical history?

According to Snow, employers have the right to be made aware of a candidate’s medical history in specific circumstances where it could pose issues after the role has commenced.

“There are obligations under State, Territory and Commonwealth anti-discrimination laws which state that if you’re going to take somebody’s disability into account, which can be an injury or illness, then you can only do so when it’s relevant and tied back to the role,” he says.

It’s in the interests of both parties to answer these questions honestly, he says, so the employer is able to adjust the role to meet the candidate’s specific needs because, under the Disability Discrimination Act 1992 (Cth), employers must provide reasonable workplace adjustments if requested.

“It also comes from the obligation of any employer to ensure employees are fit to do work that they are asking them to do. Once the role starts, the employer is going to have an obligation to ensure employees’ safety at work as far as they reasonably can,” says Snow.

Employees themselves are also subject to legal obligations when it comes to disclosing health issues that could impair their ability to do the job. However, employers are in a much stronger legal position if they have asked the candidate about their medical history and been given a dishonest answer than if they have neglected to ask the appropriate questions, says Snow.

“If an employer has asked me if I have any lower back problems, and I say I don’t when actually I do, then I commence work and I can’t do the role, the employer may be in a very good position to say, ‘Look, you’ve been dishonest and you’ve misled us, therefore we’re terminating your contract with immediate effect,’” he says.

“However, if an employer hasn’t asked those questions and [the candidate] hasn’t volunteered the information, and [an injury or disability] is disclosed after an offer has been made, then an employer may need to backtrack on the offer and could [open themselves] to legal issues.”

Compliance tips when requesting medical information

Disclosing health issues, while sometimes essential, can be a vulnerable and anxiety-ridden experience for employees. Employers must be mindful of this and ensure they are getting the right information in the right way. 

Snow offers three crucial things for HR to consider when asking an employee about their medical history, and advice for acting on their responses.

1. Ask the right questions

While employers have a responsibility to screen for relevant health limitations, there are definitely right and wrong ways to go about this, says Snow.

“Often, there is a question like, ‘Please list your medical conditions.’ That’s a tough question to answer because everyone’s got something, right? [It could be] an allergy, or a bit of a problem with your elbow or your mental health – it’s just impossibly broad.”

Rather than asking open questions that ask for unnecessary personal data to be disclosed, employers can ensure they are satisfying their legal requirements by tailoring the screening process to each role they are trying to fill. 

“A lot of those issues are not going to be relevant to doing certain work, like working in an office environment for example,” says Snow. “So the better approach is saying: ‘This role requires X, Y, and Z. Do you have any medical issues or impairments that may affect your ability to do that? If so, what are they, and what adjustments do you need us to consider making?’”

2. Don’t make assumptions

If a role has specific physical requirements, it might seem sensible to screen candidates with the intent of ruling out anyone who reports something along the lines of ‘back issues’. 

However, Snow says there are plenty of grey areas in this circumstance that HR and employers should keep in mind. 

“Think about like a traffic light – amber, red and green,” he says. “Green means no issues have been identified, they’re fully fit, and red means they can’t [meet] the requirements. The amber category is the most nuanced one, and the one where I think HR can get more involved in considering [the job application] in more detail.”

Employers can leave themselves open to legal action if they do not perform their due diligence in these cases, he says.

“If a report comes back in the middle, then the obligation is to look into it further. You can’t simply say, ‘Oh, you’re someone who’s got a problem. We’d prefer not to have you.’ That’s really problematic, especially when you’ve got great references, a terrific job history and every qualification under the sun – the only thing that’s [getting in the way] is this medical report, which has a few question marks but no concrete guidance.

“You need to investigate the adjustments you can make. In a lot of these cases, I see problems arise when a series of assumptions have been made or that question mark hasn’t been investigated a little bit further.”

3. Ensure the privacy and security of medical data

The mishandling of employee data has been a hot-button issue in recent times, and Snow says that concerns about data privacy are only amplified when they relate to sensitive health information.

“Keep it strictly on a need-to-know basis, handle it and store it with utmost care and with the highest levels of data protection possible. If that information is disclosed, it could be very embarrassing for the individual concerned, and create legal and reputational risk for the business,” he says.

While it may be necessary to share medical information about an employee in the organisation to protect their safety, sharing this information externally – such as when another employer contacts the business for a reference – can have severe consequences, says Snow.

“I see problems arise when a series of assumptions have been made or that question mark hasn’t been investigated a little bit further.” – Will Snow, Employment and Workplace Safety Partner at Finlaysons

“Managing employees’ private information within a business doesn’t come with so many compliance obligations, but the second you share that information outside of the organisation, it’s very, very problematic and will breach privacy laws.

“There are employee records exemptions under privacy laws, and there may be a situation in which that disclosure could be made, although I would strongly encourage people not to do that without some very specific legal advice. The risk there is that there could be a range of claims made against the employer by the affected employee.”

Should employees disclose a health problem if they don’t need to?

While employees are not legally required to disclose a health issue that does not significantly impact their role, Snow says there are some benefits to sharing non-essential health information with an employer.

“Increasingly, employees are comfortable sharing their fuller personal life with employers, which is to be encouraged, especially when it comes to disclosing mental illness and its symptoms,” says Snow.

“I think if they feel comfortable sharing it, they should be encouraged to do so. And what that allows is for employers to provide adjustments, flexibilities, or just more general understanding and context to someone.” 

Employees who keep certain health conditions under wraps could risk their performance being called into question, he says.

“It’s very helpful for employees to explain, if it’s relevant, ‘I’ve been late because I’ve been needing to see my psychiatrist,’ or ‘I’ve been less reliable because I’ve been having really acute symptoms.’

“If that information isn’t disclosed, the conclusion will be that the reason for these issues is because you’re a bad fit for the role. 

“Employees have got significant protections against unfair and discriminatory treatment on the grounds of illness. So, I think it’s in everyone’s interest to disclose those matters.”

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