When is it appropriate to use medical tests?
Many employers routinely use pre-employment medical tests as part of their selection process. These tests can be a useful component of the selection process for jobs that require certain physical or mental attributes.
Physical tests are relevant to jobs involving physical activity. It is less likely that sedentary jobs will require physical attributes that would justify medical testing.
Where it is necessary to test for specific attributes it is best to only test people who meet all the other requirements of the job. This is not a legal requirement but it is more cost effective and protects employers from allegations of discrimination on the ground of disability.
For jobs with legitimate physical requirements it may be useful to establish regular medical testing of employees to ensure they continue to meet the requirements and are not at risk of injury. It is important that all employees in this type of job are tested and that age is not a factor in determining who is tested.
It is vital that a pre-employment medical test relates exclusively and directly to the particular duties of the job and does not discriminate against people with disabilities. Employers could be liable for discrimination if they misuse pre-employment medical tests.
Some other examples of misuse of medical information that could make employers liable for discrimination include:
using medical information about applicants as part of the pre-interview culling process
asking applicants questions at interview about past injuries such as, back injuries and repetitive strain injury or previous workers' compensation claims as part of the selection process.
An employer also could be liable under privacy laws if they disclose results of a medical test to others eg. other employees.
What are the main features of a non-discriminatory medical test?
The main features of a non-discriminatory pre-employment medical test are:
the medical test relates specifically to the particular duties and responsibilities of the job
the specific physical attributes required for the job are accurately identified
the attributes required for the job are reasonable in all the circumstances
ways of accommodating people without these attributes have been considered
any facilities or services required by applicants with disabilities are provided if it does not cause unjustifiable hardship to do so
any assessment of a person's ability to perform the inherent requirements of the job is made after these facilities or services have been provided
the test only assesses current ability and does not attempt to predict any future deterioration. (The pre-employment medical assessment however, can be used at a later stage to determine any health deterioration, eg. to determine hearing loss in relation to an industrial deafness claim).
Designing a pre-employment medical test requires a thorough analysis of what the job entails and a careful matching of medical tests to assess the required physical attributes. This task requires a high level of expertise.
Developing a pre-employment medical test
When developing a pre-employment medical test employers should:
remove any blanket employment policy concerning disabilities unless they can be objectively justified as reasonable in all the circumstances.
analyse the requirements of the job and identify which are the essential requirements and which are the non-essential requirements
It is important to regularly reassess the requirements of the job to take account of any changes to the job or the way the job is done as changes may affect the type of skills and attributes required for the job.
Identify the skills of the job:
clarify and separate out those skills relating to the essential duties from those that relate to the non-essential duties
identify the type and level of attributes required to perform the essential duties of the job
identify the attributes required to perform the non-essential duties of the job
investigate whether there are other ways the job can be performed or designed so that people without these attributes can perform the job, particularly the essential duties
identify the types of services or facilities that could be used to assist people with disabilities to carry out the job
identify appropriate/relevant tests for assessing the required attributes.
Using the medical test
Points employers need to consider include:
ensure the medical officer conducting the pre-employment medical is aware of the anti-discrimination laws and understands that the test must relate to the specific job requirements
ensure that any applicants with a disability are tested using any service or facility they routinely use to perform the essential duties of the job. For example, if an applicant uses a hearing aid be sure the aid is used during the assessment and that an applicant takes their usual medication
remember that for applicants with a disability, only the attributes relating to the essential duties of the job can form part of the assessment
ensure that medical tests are not used to screen out applicants with certain past injuries or disabilities or those who have a family history of certain illness or disabilities as current ability is the only relevant factor
ensure that medical tests are not used to screen out applicants with past workers' compensation claims or those considered at risk of making workers compensation claims in the future as current ability is the only relevant factor
keep all medical records confidential.
Medical tests for determining eligibility to join a superannuation fund are not relevant at the pre-employment stage. These tests are more appropriately carried out after the applicant has accepted the offer of the position. Such tests can not be used for other purposes and should not affect the person's eligibility for employment.
Why is the design and application of the medical test so important?
The importance of having non-discriminatory pre-employment medical tests that are clearly relevant to the specific requirements of the job is highlighted in the recent decision by the Equal Opportunity Tribunal in the case of Hurley v The Electricity Commission of NSW (1994) EOT 92-624.
In this case Mr Hurley applied for and was rejected for cleaner/labourer positions on three separate occasions. According to two of the pre-employment medical assessments he did not meet the level of fitness set by the Commission due to his hypertension.
The Tribunal was not satisfied that the Commission's assessment of the complainant's inability to do the work was based on any real evidence.
The examining doctor had decided that the complainant did not meet the Commission's standard of fitness for the position because he was hypertensive. The doctor did not consider Mr Hurley's capacity to carry out the inherent duties.
The Tribunal found that the complainant's hypertension was insufficient reason to assume that he would be unable to carry out the full duties of the position without a serious risk to his health.
The level of physical fitness specified for the cleaner/labourer position was also questioned by the Tribunal. The Tribunal noted that the Commission emphasised the strenuous nature of some of the duties of the position and the need for applicants to meet the specified level of fitness. However, the Commission did not see the need for any ongoing assessment of its cleaner/labourer staff to ensure their health was not at risk.
The Tribunal concluded that the Commission had unlawfully discriminated against a "physically handicapped person" on the ground of his physical impairment when deciding who should be offered employment. The Tribunal ordered the Commission to pay $40,000 as compensation.
In another case, Barry v State of Victoria (1994) EOC 92-598 the Victorian Equal Opportunity Board found that the medical assessment of the complainant was based on discriminatory grounds.
Mr Barry applied for a job as a prison officer with the Department of Corrective Services. Having passed the interview and the written examination he was asked to attend a pre-employment medical test.
The complainant was assessed as physically fit to perform the duties of the job but was ineligible for employment by the Department of Corrective Services because he had recently suffered from Hodgkin's Disease (a form of cancer). This assessment was based on a policy of not employing people within a two year period of suffering from cancer.
The Board stated that the application of the policy in this case was discriminatory as it treated the complainant differently and less favourably than an applicant who did not have a prior illness of Hodgkin's Disease would have been treated.
The Board found that it was inappropriate for the examining medical officer merely to state that the applicant does not meet the medical requirements for Prison Officer Selection without providing details of the assessment to the Department of Corrective Services.
The Board also found that the Department exercised no discretion and accepted the assessment without seeking any details. In doing so the Department discriminated against the complainant on the basis of his past impairment in not offering him employment.
The complainant was awarded $5071 for loss of salary.
