Members often seek the assistance of the RTBU in relation to questions surrounding employer directed medicals, consent forms for the release of medical information to their employer, and issues concerning disputes between the advice of their treating medical practitioner and the rail doctor.
As rail workers, our Members understand that both employers and employees have a shared duty to comply with Rail Safety and OHS laws and regulations. Concerns often arise, however, about where the line can be drawn when it comes to individuals’ rights to privacy and confidentiality for medical assessments.
Ensuring employees are medically ‘fit for duty’ is part of providing a safe workplace for workers and the public. In addition to relying on workers to self-report when they are ‘unfit for duty’ (by taking a personal leave day for example), rail industry employers rely on employees undergoing pre-employment, periodical and ‘triggered’ medical assessments.
The National Standard for Health Assessment of Rail Safety Workers (the Standard) regulates how these assessments are to be conducted and provides a broad framework as a basis for rail operators to implement systems appropriate to their needs, seeking to strike a balance between safety and the rights of individuals.
In practise, however, employers have at times acted unreasonably and even unlawfully when exercising managerial powers in relation to these matters. Simply because an employee is required to undergo a medical assessment, does not mean they are required to provide their consent for their full assessments and reports to be provided to their employer.
Further, just because an employee has a health concern, does not mean that it is automatically reasonable that they be directed to undergo a medical assessment with a rail doctor. The request that employees provide consent to release medical information beyond just capacity for work such as ‘fit’, ‘unfit’, ‘fit subject to conditions’ must also be reasonable, and have a solid basis.
For example, recently a member was required to undergo a triggered medical in relation to a shoulder injury. The medical assessment was a conducted as a broad assessment of fitness in which the doctor sought information related to past health concerns and other matters unrelated to the shoulder. With the support of the RTBU, the member was able to limit the scope of the consent, so that only the information which directly related to the shoulder injury to facilitate a return to work would be shared with their employer.
Another member contacted the RTBU for assistance in relation to a direction to attend a triggered medical after taking two personal days to undergo a routine medical procedure for the replacement of an IUD (a very common contraceptive device). The member had provided adequate information supporting her fitness to return to normal duties. The RTBU notified a formal dispute in relation to the direction, after which the employer reviewed the matter, and allowed the member to return to work without seeing the rail doctor.
If you have concerns in relation to a direction to attend a medical assessment, or regarding the consent form you have been provided, contact the RTBU for advice.
