Screening of prospective employees prior to commencing employment has a number of benefits, such a reduction in injury rates, medical costs and absence from work due to injury. If you’re serious about transforming your pre-employment medical process, the following questions are critical to ensure a scalable and compliant approach.
Is our approach stuck in the past?
In October 2013, the press reported a public outcry arising from the requirement by the international oil and gas giant, Chevron, for job applicants to answer a lengthy pre-employment questionnaire which included questions in relation to, among other things, the reproductive histories of the applicant and their spouse. The story caused significant controversy, with many considering the questions to be inappropriate, irrelevant and potentially discriminatory.
Historically, employers saw the ‘physical pre-examination’ as a means of excluding individuals who might have an increased risk of absenteeism or injury. Nowadays, pre-placement health assessments are not to be recommended for use as an exclusion tool against potential employees. Employers should not advise individuals that they be accepted for employment subject to a "medical clearance."
Is my medical assessment process holistic?
The health assessment is only one factor in determining the most suitable person to place in a specific job and should be considered along with the interview, reference checks, psychological assessment, etc.
Its extent and purpose should be properly understood by the employer and the assessor, and clearly expressed to the person being assessed.It is also important to note equal opportunity and disability discrimination legislation ensures the person's ability to do the work is the paramount consideration. It is the employer's and the health professional's concern that the work can be carried out with safety to the employee and others, regardless of disability.
Why should I ask prospective employees about their health?
There are a number of reasons why employers may wish to enquire as to the health of job applicants. Some of the common reasons are:
- To ensure that the applicant is able to perform the inherent requirements of the job for which they are applying;
- If the applicant has a disability, to assist in identifying the need for reasonable adjustments to be made to allow the person to perform the role;
- To identify potential future risks to the health and safety of the applicant, and other workers, so that the employer can put in place risk prevention measures and comply with their obligations under work health and safety legislation;
- To reduce costs associated with absence from work, loss of productivity and staff turnover related to illness; and
- For the purposes of determining insurance and superannuation entitlements.
What can employers ask?
While the types of questions asked in the Chevron questionnaire may appear to be inappropriate, they are not inherently discriminatory: An employer may ask any questions it deems fit on a pre-employment health questionnaire.
The critical question is why the questions are being asked and for what purpose the responses may be used. If the questions are being asked and then used for an unlawful purpose, this will expose employers to successful claims of unlawful discrimination.
It is also important for employers to bear in mind the potential reputational risks associated with pre-employment questionnaires.
What are the legal and reputational risks?
The most significant legal risk for employers asking questions in a pre-employment questionnaire and then using that material on a basis to select one applicant over another is a breach of disability discrimination legislation at both Federal and State levels. These pieces of legislation prohibit discrimination on the basis of disability in a number of areas, including in employment.
Under the Disability Discrimination Act 1992, employers are prohibited from discriminating against prospective employees on the basis of their disability in the arrangements made for the purpose of determining who should be offered employment and in the terms or conditions on which employment is offered. “Disability” is defined broadly to include a range of conditions and includes conditions that presently exist, previously existed or may exist in the future.
However, the Disability Discrimination Act does contain an “exemption” which may allow an employer to successfully defeat a disability discrimination claim brought against an employer in a situation where the employer has asked questions of an applicant, the applicant in answering discloses a medical condition or disability, and based on those answers the employer decides against employing that applicant.
- “Inherent requirements” of the job: That is “exemption” is where an employer can show that, because of the person’s disability, they would not be able to carry out the inherent requirements of the particular work, even if the relevant employer made reasonable adjustments for the person to accommodate their disability.
- “Unjustifiable hardship”: Another “exemption” is if the employer can show that to introduce reasonable adjustments would be to impose an unjustifiable hardship on the employer.
- Reputational risks: In addition to the legal risks associated with pre-employment medical questionnaires, there are a number of reputational risks involved with asking about an applicant’s health.
A questionnaire that contains unduly intrusive medical and personal questions without knowledge to whom and for what purpose the information will be used can have the effect of deterring an applicant from pursuing their application and cause reputational damage in the market.
Are you aware of any medical condition or other factor relating to your health and physical fitness which may prevent you from performing the duties identified?
A question such as this will make clear to the applicant the purpose of the question, provide relevant information to the employer and allow the applicant the opportunity to identify any reasonable adjustments that can be made.
How can I avoid risks associated with pre-employment medical assessments?
Common ways to minimise the legal and reputational risks associated with pre-employment medical questionnaires include:
- Look at the nature of the job to be filled and only ask questions that are related directly to the performance of that job;
- If the applicant identifies a disability or health condition, ask the applicant to suggest any reasonable adjustments that could be made to accommodate their disability or health condition;
- Clearly identify for the applicant what the job requirements are and what the questions will be used for; and
- Only use information provided for legitimate purposes such as checking if applicant’s can perform the inherent requirements of the role, identifying reasonable adjustments that could be made to accommodate a disability, and assessing what measures need to be taken to comply with work health and safety obligations.
Who is getting it right?
Let’s take a look at one of DHS’ clients, a community services society (the Society), where employees had direct interaction with disadvantaged members of the population who were facing significant health and safety challenges.
In particular, the Society was concerned about:
- Employees exposed to behavioural risks throughout the course of their employment
- A lack of pre-employment medical processes in place
- Limited available funds to invest in an extensive medical program but the desire to increase the level of risk protection for its staff.
Direct Health Solutions (DHS) were engaged to design a bespoke on-line pre-employment medical screen for the Society to address the above challenges. The solution included the following key elements:
- Online form tailored to the inherent requirements of the role
- Link provided to all candidates during the recruitment process
- Questionnaire reviewed by DHS Medical Assessment Team and statement of results with clear fit/unfit guidance and recommendations for reasonable adjustment provided
The solution was fully embraced by the Society and provided the following benefits:
- Significantly improved risk protection for a minor investment
- Improved candidate experience and initial onboarding through better understanding of the inherent requirements of the role prior to commencement
- Final statement of results provided within 1 business day of candidate completion
How we can help
Direct Health Solutions (DHS) offers a comprehensive and detailed library of employment medical services, all of which can be tailored to suit your business needs. These assessments include:
- Periodic/Health surveillance
- Medico-legal/fit for work
- Drug and alcohol
- Serology/Occupational vaccinations
- COVID-19 health screening and PCR testing
MedTrack is our future-fit software designed to track and manage the health of your employees from pre-employment medicals through to any type of scheduled medical assessment:
- Allows you to request, track and record all activities in a real-time web portal supported by dynamic dashboards and powerful analytical tools.
- User-friendly and drives process compliance and efficiencies whilst seamlessly integrating with other systems.
- Adjusted to align to your program requirements and ensure the process of managing your medicals is made as easy as possible.
DHS offers varying modes of delivery such as online health questionnaires, face-to-face clinical assessments, and virtual care including tele-medicine, virtual reviews, and tele-consults, all of which can apply to any stage of the employment lifecycle.
Roles requiring clinical intervention for assessment are coordinated with our Medical Provider Network (MPN) in the most convenient location at the most suitable time, aligning all assessment elements together to deliver a timely and clear recommendation of fitness to work.
DHS ensures assessments are delivered in the most amenable and least imposing mode possible and work with you to fully customise your employment medical program to key job roles.
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