Workplace medical testing: What can you ask of your employees?

Andrew Scott-Howman, Partner | August 2003

The topic of workplace medical testing has gained a significant profile over recent weeks.

It is an issue which, particularly in light of changes to health and safety legislation, should now be at the forefront of most employer's minds.

Fit for work?

The issue was recently covered in the decision of the Employment Court in Radio New Zealand Limited v Snowdon (Unreported, Employment Court, Wellington, 17 July 2003).

Ms Snowdon has been employed by Radio New Zealand as Managing Editor of News since 1994. Her current terms of employment incorporate a document referred to as her employer's "employment principles".

Amongst other things, that document allows for an employee to be granted "as needs" sick leave in particular situations.

Differences arose between Ms Snowdon and her employer towards the end of 2002. Her health began to suffer - and as a result, she took early Christmas leave.

Certificates provided

While she was on leave, Ms Snowdon produced a medical certificate from a general practitioner suggesting that she was "medically unfit for work". She produced similar medical certificates through January and February.

In Ms Snowden's absence, her employer agreed for existing employees to provide interim cover for her work.

In February, Radio New Zealand wished to have Ms Snowdon examined by the company's appointed doctor. Ms Snowdon responded by suggesting that she was not required to undergo an examination by this medical practitioner.

There followed an exchange of correspondence between the parties. Radio New Zealand said that, because of the limited nature of the medical information available, it had no indication of the nature of Ms Snowdon's sickness and queried an assertion by her that she would possibly be fit to return to work.

In response, Ms Snowdon said that she would agree to pass on private medical information to an independent doctor, although some issues were raised as to the identity of an appropriate doctor. Ms Snowdon said, amongst other things, that she held reservations about being examined by a male doctor appointed by her employer.

Ultimately, matters came to a head. Radio New Zealand said that it did not wish Ms Snowdon to return to work in circumstances where it did not have adequate medical information to enable it to reach a reasonable view about her fitness for work.

In response, Ms Snowdon said that she had been certified as fit to return to work, and that her employer had unjustifiably suspended her.

The finding

The issue before the Court turned primarily upon the interpretation of Radio New Zealand's employment principles.

The relevant document allowed the employer to seek medical information about one of its employees in certain prescribed circumstances.

Amongst the specified fact situations were: where it wished to ascertain the genuineness of an employee's sickness; where the employer sought a review of its employees' condition in the case of a long-term illness; and where it sought a medical report before making a decision to terminate employment.

The Court viewed the case as a situation in which the competing parties' rights were in conflict.

It found that Radio New Zealand was justified in requiring some evidence about Ms Snowdon's fitness to return to work.

However, it also found that the employer could not insist on examination by a medical practitioner outside of the specific terms envisaged in the employment principles: those principles did not allow Radio New Zealand to require a medical examination for the purposes of determining Ms Snowdon's fitness for work.

Ultimately, the Court concluded that it was not satisfied that Ms Snowdon had acted entirely in good faith. It held that she had failed to provide her employer with adequate information upon which it could assess her reasons for her long-term absence.

It found that Radio New Zealand was entitled to consult with her medical practitioner - even though it could not insist upon an examination by a doctor of its own choice.

On this basis, the Court found that Radio New Zealand was justified in refusing to allow Ms Snowdon back to work.

In conclusion, the Court held that the parties had reached an unsatisfactory impasse. In view of this, the Court directed the parties to use mediation in an attempt to reach an agreed settlement of their differences.

Impact

The decision in this recent case provides two important messages for employers.

First, in assessing an employee's fitness for work, an employer may reasonably require the employee to provide it with information from his or her medical practitioners for this purpose.

Secondly, an employer may only compel an employee to undergo a medical examination by an appointed doctor if such a course of action is provided for in the employee's terms of employment.

In this case, the employer was unable to require a medical examination - largely because the relevant terms and conditions were limited to certain specific fact situations.

An employer desiring a more general ability to require an employee to undergo a medical examination should consider a general policy (perhaps part of a health and safety policy) to this effect.

Advice and information

Bell Gully's Employment Team can advise you on all types of employment issues, including workplace medical testing. Contact the team at the numbers below for more information.

AUCKLAND

Rob Towner
Partner

WELLINGTON

Andrew Scott-Howman
Partner