Are we able to request for a job candidate to undertake a pre-employment medical so that a doctor can provide us with any recommendation on what adjustments would be needed for the candidate to perform the job before we decide whether to engage them?
You may only require job candidates to undergo pre-employment medical examinations in some circumstances. Such medical examinations are only allowed insofar as the employer wishes to confirm that the job candidate will:
- be able to perform the inherent requirements of the job for which they have applied; and
- not pose a health and safety risk to themselves or others in carrying out their role.
Any tests involved in a medical examination should only relate strictly to the job candidate’s ability to carry out the duties that the applied job requires. Under both the Fair Work Act 2009 (Cth) (FW Act) and anti-discrimination legislation, it is unlawful discrimination to reject a candidate based on a medical condition unless that condition means that the candidate will be unable to perform the inherent requirements of the role.
Under section 351(1) of the FW Act, an employer is prohibited from taking adverse action against a prospective employee because of their physical or mental disability.
Coupled with this, section 342 of the FW Act provides that adverse action may include the refusal to employ the prospective employee. Therefore, in deciding not to employ a job candidate on the basis of a pre-employment medical, care must be taken to mitigate the risk of a general protections claim by the candidate.
Under anti-discrimination legislation, section 15 of the Disability Discrimination Act 1992 (Cth) makes it unlawful for an employer to discriminate against a candidate because of their disability with respect to both the decision and the arrangements made to decide who should be offered employment. Similar prohibitions are provided for in state-based anti-discrimination legislation, and again, any claim for disability discrimination may be mitigated by evidence of the candidate’s inability to perform the inherent requirements of the job.