Access to medical records of employee by employer Part 1

I am often asked whether an employer can lawfully demand access to an employee’s private medical records. The demand is usually made in the context of a dispute between the employee and the employer about whether the employee is fit for the job, or more properly whether the employee is physically or mentally able to meet the inherent requirements of the job.

There is little doubt that an employer may require an employee to present to a medical practitioner nominated and paid for by the employer for a medical assessment if the reason for the employer doing so is the above.

In the following case, an employee was dismissed for failing to present for such an assessment on the basis that the employee had failed to comply with a lawful and reasonable instruction.

The employee was on extended sick leave whilst receiving treatment for a shoulder injury sustained in the course of his duties. After a lengthy absence from the workplace following surgery, the employer required the employee to attend its nominated medical specialist for a functional assessment test before being assigned duties. The employee did not attend the medical appointment, nor the rescheduled medical appointment.

The employee was dismissed for failing to follow lawful and reasonable directions to attend a medical appointment, as well as his refusal to participate in the disciplinary investigation. At first instance the Commission found this a valid reason for dismissal and the application was dismissed. This decision was affirmed on appeal.

 

Grant v BHP Coal Pty Ltd (2014) FWCFB 3027 per Richards SDP, Asbury DP, Booth C delivered 18 June 2014