The increasing focus on mental health in the workplace raises questions about the rights of an employer to ask workers for information about any medication they may be using that could impact their ability to work safely.

Whether for a physical or mental illness, some medications can impact the capacity of an employee to work safely. In the case of long-term use of medications, an employer may become concerned if a worker displays unsafe behaviour in the workplace that could be linked to the worker’s use of an existing or new medication.

Do employers have the right to ask a worker for information regarding the use of medication? If a worker refuses, what can an employer do?

Employer rights

Often an employer will already have a lawful right, whether contractual or in an industrial instrument or policy, to direct a worker to cease work until such time as the worker can satisfy the employer that they are able to safely do the work. This right could be exercised in circumstances where an employer observes unsafe work or is concerned that a worker returning to work after a medical absence may not be able to perform their duties safely.

A worker must follow such a direction and a failure could result in disciplinary action. However, a worker may not necessarily have to disclose the medication that they are taking or even details of their medical condition. This is the case if the worker can provide a medical practitioner’s report stating they can safely perform the work with the current medication that they are taking. In other words, a requirement to identify the medication itself may not be reasonable if a medical practitioner provides certification that the work can be done safely.

Privacy considerations

If the prescribed medication is not something that, in the opinion of the medical practitioner, affects the worker’s ability to perform their duties at work, you cannot compel your workers to provide the details of their medication. Given privacy laws, you would also need to treat carefully any use of medical information that your workers voluntarily notified you about, which may have been collected for the limited use of informing medical practitioners in the event of an emergency.

Discrimination considerations

As with physical disabilities, discrimination law also protects individuals who have a mental disability. This protection extends to ensuring that a worker is not treated differently because of that disability, including because of the use of medication. While safety concerns are an exception to potentially discriminatory action by an employer (e.g. by refusing the worker the right to do certain tasks), it is nevertheless critical that steps are first taken to accommodate the disability where reasonably possible.

In brief

While the safety law imposes an overriding obligation on employers to ensure the safety of their workforce, there are limits to the information that a worker must provide regarding their use of medication.