Recently we were recruiting for a client and the role required the successful applicant to be able to be physically fit due to the nature of the work.  We needed to manage this prior to appointing anyone to the position as this client had been burned before with a previous employee not disclosing a pre-existing injury.  This little omission meant that the person appointed wasn’t actually suited to the job and they knew this when they applied.  They also tried to whip through a sneaky WorkCover claim but that’s another story for another blog! 

In this instance, it really was an easy fix.  We simply included a pre-employment medical in the recruitment process and removed any doubt as to the suitability of the preferred candidate.  Voilá – happy client and exciting new job for the candidate.  Everyone was happy.

Can you require a pre-employment medical?

Is it unusual to require a pre-employment medical?  Not really.  There are plenty of industries that require this as a means to protecting the business as well as the new candidates.  Let’s take a look at what you can and can’t do and what it all means…

The best way is to have your own preferred provider you engage to conduct pre-employment medical assessments on your behalf.  This way you can provide them with a brief on the role and the physical requirements it demands. The medical practitioner can assess individuals against the position you are seeking to fill.

Consent from the candidate is required before any examination or test is conducted so we suggest advising all potential candidates up front that a pre-employment medical is part of the recruitment process.  It’s as simple as popping this in the recruitment ad or advising when initial contact is made for first round interviews. 

From there, if they choose to attend the appointment then they have provided consent.   The results of any pre-employment medical examination are protected by privacy law and, in some jurisdictions, specific health information law.

Inherent requirements of the job...

As an employer, you may investigate issues in relation to job applicants but only if it can be established that the information sought is related to the inherent requirements of the job.  You are allowed to consider the health and safety of others when considering these job requirements.  What this means is that you may address the following concerns in any pre-employment medical assessment:

• the physical ability of the candidate to perform the role without undue risk to self or others
• the degree of risk to the prospective employee or others already in your employ
• the consequences of any risk being realised
• the employer’s legal obligations to co-employees and others 

Pre-employment medical checks are quite thorough and can include any or all of the following:

• Height, weight, body mass index (BMI)
• Cardiovascular examination (heart check, blood pressure, pulse)
• Full musculoskeletal examination including comprehensive range of movement
• Central nervous system examination
• Examination for hernias and other abdominal abnormalities
• Urinalysis for diabetes or kidney / bladder disorders
• Respiratory examination
• Vision assessment including colour blindness

Additionally, your industry or EBA may require or allow for any of the following to be included within the testing:

• Audiometry (hearing test)
• Spirometry (lung function test)
• Drug and alcohol testing (instant or laboratory)
• Work fitness assessments (otherwise known as functional capacity evaluations)
• Periodic and exit medical assessments
• Statutory and code of practice screening
• Health surveillance screening (including hazardous substance monitoring)

Again, as an employer you may only access information that may impact the ability of a candidate to deliver on the inherent requirements of the job and you can only use the information provided to make a genuine decision on whether any physical concerns will genuinely impact on the person’s ability to do the job.  

Discrimination law

Most important to note is that a pre-employment medical examination must comply with equal opportunity and privacy laws.  Consideration has to be given to the nature of the job, whether a medical condition is relevant to the performance of the job, and what the employer will do with any information obtained from a medical examination.

As with most things in life, there are always exceptions to the rule and there are instances where it is not unlawful to discriminate against a person based on medical information, with the main considerations involve the following:

• where the candidate’s medical condition prevents them from performing the inherent requirements of the job.  For example, a pre-existing back injury may preclude someone from working in a role that requires a lot of lifting.
• where a person with a disability requires special services or facilities to do their work and the provision of those special services or facilities would cause unjustifiable hardship to the employer. 
• where otherwise discriminatory acts are reasonably necessary to promote health and safety. 

The Fair Work Act has a ‘general protections’ provision that allows the protection of a prospective employee from adverse action based on discriminatory grounds taken by an employer so you need to be mindful as to how you use information received as a result of a pre-employment medical.

If you require additional information regarding pre-employment medicals, give the HR Staff n’ Stuff team a call.