Who can use this policy
This policy can be used by all employers.
Commentary
The components of each job will typically include requirements which are essential to the performance of the role. Often the essential requirements of a job can be satisfied only with the appropriate qualifications, skills or experience. In some cases, health will be a critical consideration in the assessment of whether a person can fulfill the essential requirements. In particular, an employer is entitled to be satisfied that a person can perform the job without risk to health and safety.
As long as there is a relevant connection with the essential requirements of the job, the collection of health information about a job candidate (which may include an existing employee) is a legitimate step in the recruitment and selection process. Unless there is a relevant connection, employers should avoid collecting health information about job candidates and there are legal risks — particularly under disability discrimination law — where irrelevant information is relied upon by the employer.
Under disability discrimination laws, it is unlawful to discriminate in recruitment on the basis of an applicant’s disability. Disability is broadly defined and it includes intellectual, psychiatric, mental and physical disabilities. A notable exception to the prohibition applies where:
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the prospective employee is not able to perform the inherent requirements of the job; and
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providing the required services or facilities to enable the prospective employee to carry out the inherent requirements of the job would impose an unjustifiable hardship on the employer.
These steps reflect good practice and risk management:
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Request health/medical information or a pre-employment health/medical assessment only if it relates to the inherent requirements of the position. Do not request disclosure of ‘general health’ matters, rather just health information that relates to the prospective employee’s ability to perform the inherent requirements of the position.
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Limit pre-employment medicals to ‘serious contenders’ for the position.
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Obtain written consent from the prospective employee to undergo a pre-employment medical.
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Consider if any ‘reasonable accommodation’ can be made to enable the prospective employee to perform the inherent requirements of the job. If such accommodation can be made, consider whether doing so would impose an unjustifiable hardship.
Privacy and confidentiality
Information about a person’s health should be handled in a confidential and sensitive manner. The information should be confined to those who have a reason to know and it should be kept secure. If the information is about a person who is not an employee (which is likely to be the case with most job candidates), the information should be handled in accordance with the principles regarding personal information contained within the Privacy Act.
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Important note to subscribers
The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. |
Further information
Further information on how to use this document can be found at the 'How to use these policies' link on the Policies page of the HR Advance website.
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