Due to an increasing awareness of WHS obligations, and with research suggesting that at least one in five Australians suffer from a mental illness (Australian Government Department of Health) more and more employers are taking greater notice of the state of their workers’ mental health.
Many businesses will have employees who are required to take medication for conditions such as depression and other psychological issues. However to what extent can employers request that their employees disclose the amount of, and nature of the types of medications that they take?
Health and Safety lawyer, Michael Selinger, says that employers who are genuinely concerned about the potential effect that any prescription medication may have on the ability of an employee to perform their duties safely can direct the employee to inform them of any such medication that they may be taking. Mr Selinger states that such a request would “constitute a lawful and reasonable direction and is something that can be included in any drug or alcohol policy in the workplace”.
However, if an employee is taking prescribed medication which does not have an effect on their ability to perform their duties at work safely, an employer cannot compel the employee to provide the details of their medication. In such situations, the employer could request that their employees voluntarily notify them of any medication/s that they are taking so that this information can be used, only if required, in the event of an emergency situation.
In addition to requesting information from an employee regarding any potential impacts that medication may have on their capacity to perform their role, where an employer has genuine reason to be concerned about the health and welfare an employee, they may be able to direct an employee to attend a medical examination to assess whether there is any risk to their health and safety (and that of others) in performing the inherent requirements of their roles.
Mental illness is defined as being a disability under anti-discrimination legislation and any actions that you may take that treat these employees any less favourably than other employees may give rise to a discrimination or general protections complaint. Any such request for an employee to attend a medical examination must be reasonable in the circumstances.
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