In this Fact Sheet, we discuss medical divulgence (also known as the sharing of medical information) with a prospective employer before employment, and with an employer during employment.
Most people worry they’ll say the wrong thing about their health at work.
The law doesn’t require you to share your full medical history, but it does allow employers to ask some job-related questions. It is important for you to understand your rights around medical disclosure before, during and after employment. In Victoria, Queensland and Tasmania please note the following:
No. You are not legally required to volunteer your medical history when applying for a job. You can choose whether or not to disclose, even if asked directly, but there may be consequences if the question is reasonable and relevant to the job.
If a request for medical information is reasonable and you refuse to answer, you may be excluded from the recruitment process. And if you are offered the job but were not honest about a condition that affects your ability to do the work, your employer may later treat this as misconduct. Not disclosing a condition that affects your work can also create issues later, particularly if the condition is aggravated at work or raises safety concerns.
A pre-employment medical assessment is a health check arranged by an employer before you start a job. These assessments are lawful if they relate to the core requirements of the job or to workers’ compensation insurance. The results must be kept confidential, and the assessment should only examine your ability to perform the tasks of the specific role you have applied for.
It is unlawful for an employer to refuse to hire you simply because you have disclosed a medical condition. Also, employers are required under discrimination law to make reasonable adjustments for employees with a disability. However, an employer may be able to take your condition into account if it prevents you from performing the essential tasks of the job even with reasonable adjustments, or if hiring you would breach occupational health and safety laws.
If you believe a prospective employer has discriminated against you because of a medical condition, you may be able to make a complaint under the Disability Discrimination Act 1992 (Cth), the Equal Opportunity Act 2010 (Vic), the Anti-Discrimination Act 1991 (Qld), or the Anti-Discrimination Act 1998 (Tas). You can only choose one jurisdiction, so it is worth getting advice before you file anything.
You may need to tell your employer about an illness or injury if it affects your ability to perform the essential tasks of your job.
If you are able to work with adjustments, such as lighter duties or modified hours, you have the right to request these. In these situations, it will usually be lawful and reasonable for your employer to ask for medical information about what duties you can and cannot do.
A request is likely to be reasonable if your condition affects your ability to carry out the core tasks of the job, affects your health or safety or that of your co-workers, or could be worsened by the nature of the work. For example, a person applying to drive heavy machinery may be asked about conditions or medications that affect their ability to operate it safely.
An employer may also ask for consent to access your workers’ compensation claims history. Requests that have nothing to do with the job are unlikely to be reasonable. An employer may also request disclosure of medical conditions for the purposes of workers’ injury compensation insurance.
If you’re unsure whether to answer a question about your health, you can ask the employer how the information relates to the role before responding.
Generally, no. If you need to take personal leave, you do not usually have to share the details of your illness or injury with your employer. You do need to notify your employer as soon as possible and provide a medical certificate or statutory declaration covering your absence if this is requested. It also helps to let your employer know how long you expect to be off.
You may need to share more information if your condition affects your ability to perform the core tasks of your job, or if you are asking your employer to make adjustments to your role or duties.
You may need to tell your employer about an illness or injury if it affects your ability to perform the essential tasks of your job. If you need adjustments, for example, lighter duties or modified hours, it will usually be lawful and reasonable for your employer to ask for medical information about what you can and cannot do.
There is no single rule. Each situation is assessed on its own facts. If you are unsure whether a request for medical information is lawful, contact JobWatch for more information before responding.
You have the right to choose your own doctor for treatment. However, your employer may lawfully direct you to attend an examination with their nominated doctor in some circumstances, for example, where you have requested workplace adjustments or where there is a genuine health and safety concern. The assessment must be limited to your ability to perform the tasks of your specific role, not your general health.
Example: Jim worked in a mine and injured his shoulder at home. After eight months off, he returned with a medical certificate that did not detail any restrictions on his ability to work. His employer directed him to see its own doctor before returning to heavy physical duties. Jim refused and was dismissed. The Fair Work Commission found the direction was lawful and reasonable given the employer’s work health and safety obligations.
Only with your consent. If you do agree, you should instruct your doctor to discuss only what is directly relevant to your role. Your employer is not entitled to general information about your health.
If you have used all of your paid personal leave, you may request to take unpaid personal leave. Your employer may also allow you to use accrued annual leave. All of the protections around medical disclosure continue to apply even while you are on unpaid leave.
If your employer dismisses you because of your medical condition, or because you exercised a workplace right such as taking personal leave, you may have legal options. You may be able to lodge an unfair dismissal claim or a general protections claim at the Fair Work Commission. You have 21 days from the date your dismissal takes effect to file either of these claims. Contact JobWatch as soon as possible if this happens.
If you think you may have been excluded from employment or discriminated against at work because of a medical condition, you may also be able to make a disability discrimination complaint. See JobWatch’s Disability Discrimination, Unfair Dismissal and General Protections fact sheets for more information.
This information applies to workers in Victoria, Queensland and Tasmania under the Fair Work Act 2009 (Cth).
State anti-discrimination protections also apply under the Equal Opportunity Act 2010 (Vic), Anti-Discrimination Act 1991 (Qld), and Anti-Discrimination Act 1998 (Tas). If you are in another state or territory, the details may differ and you should seek advice about your specific circumstances.
JobWatch provides free and confidential telephone information and referral for workers in Victoria, Queensland and Tasmania.
Call our Telephone Information Service on Melbourne Metro (03) 9662 1933 or Regional Victoria, Queensland and Tasmania on 1800 331 617.
For more information about medical divulgence, we recommend you download the ‘Medical Divulgence’ Fact Sheet.
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