Medical history is a sensitive topic that comes with responsibilities of confidentiality and privacy. For these reasons, it is highly unusual for current and or prospective employees to disclose their pre-existing medical history and this is also not always required. Should the pre-existing medical history have no bearing on the employee’s ability to undertake the inherent requirements of the role, it renders requesting it irrelevant. Furthermore, there is no legal obligation to volunteer the medical information for candidates. However, non-disclosure is not always the best approach.
There are however some circumstances that would dictate that an employer requires that information to ensure the safety of the employee and that of others. At the surface of it, the idea of discussing intimate personal information about your health with someone is quite uncomfortable but not disclosing and or withholding key information pertaining to someone’s ability to perform a role will likely result in complications later for both the individual and the employer.
Let’s explore when it might be warranted for a candidate and an employee to disclose their pre-existing medical history and the anti-discrimination laws.
Anti-discrimination laws
It is unlawful to discriminate on the basis of a number of protected attributes including age, disability, race, sex, intersex status, gender identity and sexual orientation. Below is a list of the applicable anti-discrimination laws that are captured in the following legislation:
- Age Discrimination Act 2004
- Disability Discrimination Act 1992
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Australian Human Rights Commission Act 1986
The Australian Human Rights Commission and relevant state and territory agencies, have the vested authority and power to receive, investigate and conciliate complaints of unlawful discrimination on the grounds of a protected attribute being discriminated on, under Australia’s anti-discrimination legislation.
When should you disclose your medical history
Candidates and employees alike, need to disclose pre-existing injury and or health issues that would prevent them from performing the role for which they have applied for or are an incumbent of. Disclosure is not applicable if the candidate or employee can still perform the role in the same way it requires.
In the instance where a medical history could be present a work health and safety issue for a candidate, employee or their colleagues, it should be disclosed, so that the employer can ensure they take all reasonable required steps to mitigate the risk.
There might also be practical reasons as to why candidates and employees should disclose their pre-existing injury and or health issues, for example if they need alterations made to the workplace to assist them work safely and productively.
Employer’s support
Under the Equal Opportunity Act 2010 and the Disability Discrimination Act 1992, employers are required to make ‘reasonable adjustments’ for someone with a disability including:
- injuries (work and non-work related)
- illnesses (permanent and temporary)
- physical, neurological disease or disorder psychological
Reasonable adjustments could include but are not limited to:
- alterations to workstation
- support through assistive technology such as screen reading
- additional breaks
- flexible working arrangement
What and how to ask
Asking candidates to disclose pre-existing injuries and medical conditions might be part of your pre-employment or recruitment process, and if you want to ensure that there is the requirement of disclosure of any pre-existing injuries and medical conditions in writing.
Employers can –
- Request information and details only relevant to the person’s ability to perform the duties required for the role.
- Ask whether the person has any health concerns that may prevent them from performing the role.
- Request whether the person has any pre-existing injuries or illness that could be expected to be aggravated by performing the duties associated with the role.
Key takeaway
More and more, employees and prospective candidates are comfortable with sharing pre-existing injuries and medical conditions with employers. This is key to ensuring that everyone in the workplace can be accommodate within reason and kept safe at all times.
If approached appropriately, disclosing, or requesting information about pre-existing injuries and medical conditions relevant to the performance of a role can be undertake successfully and create a better working environment for all.
For more information on the above, please contact us on 1300 887 458 and speak with one of our HR Consultants. If you are interested in learning more about our HR services, including HR Outsourcing, HR Consulting, HR Advisory Services, contact us at enquiries@liquidhr.com.au.
