Recently we have been asked to review a range of pre employment medical questionnaires that employers are proposing to use with potential employees.
Whilst the underlying reason for seeking information on the health status of an applicant may be valid these questions are fraught with danger from a discriminatory perspective and some general principles apply.
In the first instance an organisation should have some clear policy structure around discrimination and equal opportunity, this supports any documentation that may be in use and employers should be mindful that any forms etc and their content are ‘in line’ with the position taken by the Policy.
In addition any questions asked MUST directly relate to the performance of the role and the capacity of the person to adequately meet the physical demands of the job.
- ‘Have you suffered from Cancer -when and what type and has any member for your family suffered from Cancer’?
- ‘Are you a smoker – if so for how long and how much do you smoke each day’?
- ‘Do you have irritable bowel syndrome or suffer from diarrhoea’?
And the list goes on and on….
An employer needs to ask a whole series of questions with regard to gathering this sensitive and personal information about someone – pre supposing that they actually answer the questions, these questions include:
- What are the essential criteria of the role in terms of physical and mental demands?
- Would a general medical to establish adequate fitness be enough to satisfy our requirements?
- Why do we want this information?
- What will we do with the information once we have it?
- How will we store and manage it? (Privacy Act)
- What relevance does this information have to the performance of the roles that we are advertising for? (Discrimination Act)
- Are we potentially placing ourselves in a situation where the acquisition of this information places us in a position where we could be found guilty of actively discriminating against someone? (Equal Opportunity Act)
- Are we potentially going to breach several pieces of legislation by asking these questions in the first place?
So having gone through an analysis of the ‘why’ and the ‘how’ what questions are relevant?
- Requesting information about a pre existing injury that may impact into the role
- Information about current workers compensation claims or previous workers compensation claims that may indicate a likelihood of re injury
- Information about allergies related to likelihood of exposure within the workplace
- General mobility neck/shoulder/back mobility issues that may hamper the applicants ability to do the role or present a risk of re injury
- Matters to do specifically with the role eg if an overseas posting current status of inoculations and other related matters
- Prescription medication that may impact into the performance of the role
The next question is ‘when’ we ask these questions and most commonly they form part of a Pre Employment Questionnaire at the commencement of the recruitment practice. A job specification and JDF will also assist in clearly establishing what level of fitness and physical dexterity is required to safely perform the role. Naturally you would have a ‘Fitness for Duty Policy’ which fleshes these requirements out and establishes key components eg annual medical clearances to support policy position.
Essentially you are designing questions with a view to protecting the integrity of your operations, ensuring the safety of staff and clients, reducing the risk exposure to illness and injury and supporting your duty of care under the OSH Act. At the same time complying with your statutory and legislative compliance in terms of the several Acts which cover discrimination and human rights in the workplace.
So before you start rolling out your Pre Employment Medical Form THINK about what you are asking and question the need for it, you may end up with a whole series of unforeseen consequences if you don’t.
Need help, advice and/or policy in this area? Call us today.