Serious Health Issue Do I have to tell my employer?
Its a fine balance between what do you tell or not tell your employer. You have rights to privacy. The employer has rights to, wants to know what’s going on. Has a business to run. You should not be dismissed for being sick. You should not be subjected to a workplace investigation. Do not be forced to resign. Please read on, it could be important to your future. Serious Health Issue Do I have to tell my employer? should be compulsory reading!
Calls because of a serious health issue
We constantly get calls from employees who have the onset of a serious health issue. They worry about being dismissed, loss of income amongst other concerns. I have chosen to discuss Multiple Sclerosis, because in the last year I’ve had several friends or associates who have the onset of MS at a relatively young age. But what happens within MS being discuss here, is transferable to other health events. Your always welcome to call me directly to discuss the matter.
Being diagnosed with multiple sclerosis (MS) or any other serious health illness for that matter. Can be a difficult and emotional situation to navigate, and the same can be said for those who you choose to tell. If you have just been diagnosed with MS and are experiencing minimal to no symptoms. You may not wish to immediately disclose your diagnosis to your employer. (this is an issue with early stages of pregnancy and the dismissals that follow). Ultimately, it is a consideration of what level of privacy you wish to maintain and how this will affect your capacity to work.
I’m afraid of being treated differently, bullied or missing out on opportunities at work…
It is entirely normal and understandable to be concerned about facing discrimination. Being treated differently as a result of disclosing your diagnosis. Concerned about being dismissed. You may not wish to inform your employer of your MS because you do not want to be missed for opportunities. Or you desire to continue maintaining normalcy in your employment.[1] Deciding not to disclose, or delaying disclosure, may be appropriate for you in these circumstances. It would not be considered lying or cheating. (we see this with issues around early pregnancy).
If you are undertaking appropriate management plans and abiding by fatigue management strategies. Paying close attention to your diet and following a rigorous exercise and rest regime to minimize your symptoms Then you may not find the need to inform your employer of your diagnosis. However, it is crucial that you closely monitor the progress and affect of your symptoms on your ability to work.
There is no requirement for you to disclose your serious health issue
There is no requirement for you to disclose your serious health issue (MS) to your employer unless the symptoms and side effects you experience, are likely to affect your ability and capacity to perform the inherent requirements of your role, or are likely to present a risk to yourself or others.[2] You cannot be dismissed for this course of action.
This means that as soon as your symptoms begin affecting your work, you should disclose your MS to your employer immediately. However, if your employer does ask you, in writing, to disclose any pre-existing injuries or illnesses that may reasonably affect you capacity to work, and you do not disclose your diagnosis. Then you may not receive workers’ compensation if the symptoms and side effects worsen or are recurrent while working.[3]
How do I know when to disclose my serious health issue (MS)
The disclosure of your diagnosis and its impact on your employment, will largely depend on the nature and requirements of your role. For example, if you are a truck driver and you are experiencing visual disturbances or your medication is making you feel drowsy. This poses a substantial risk to your capacity to work, as well as to the health and safety of yourself and others.[4] As a result, you must tell your employer of your MS. So that they can make appropriate arrangements for yourself and for those around you.
However, if you are a classroom teacher and you can confidently perform the inherent duties of your role despite suffering from some fatigue, or needing to request some time off yard duty on hot days, then you can determine whether you wish to disclose your MS or not because it is not substantially affecting your capacity to work, or posing a danger to yourself and others.[5]
Essentially, knowing when to disclose your diagnosis requires a consideration of the nature and intensity of your work. In circumstances where you are operating heavy machinery. Driving or doing anything that poses a significant risk to yourself and others, it is always advisable that you inform your employer as soon as possible. However, if your capacity to work remains largely unaffected, then the choice is yours with regards to if, when and how you wish to disclose this matter.
and cannot continue to be a productive employee
But what if I am still afraid? What can i do?
It can be daunting to disclose your diagnosis of MS to your employer. However you should also consider the significant benefits you may experience if you do so. First, you may be able to increase education and awareness of MS by speaking to your employer. Your colleagues about how it affects you. It also provides the opportunity to negotiate suitable working arrangements that allow you to perform your role to the best of your abilities, while also making accommodations where necessary.
Disclosure can also reduce any stress or anxiousness you experience from trying to cover up signs and symptoms of MS, trying to provide explanations for medical appointments and absences from work. It can be largely relieving once you tell your employer and it also provides them with the opportunity to speak with you and understand what your needs are. Although you may be reluctant to do so, you consider giving your employer a chance to address your needs.
If your employer is requesting information about your MS, they must ensure they are doing this respectfully. It’s in a manner that is not fair or intrusive. This means they need to tell you why they are seeking this information. Advise you of any consequences if you do not respond to them. Allow you to have access to your own information. Provide you with the contact details of those who will receive copies of your information.[6]
Be in control of the information you are willing to give
The most important thing to remember is that you remain in control of the information you are willing to give. You can choose how much and to whom you wish to share your diagnosis.[7] If certain symptoms or side effects are not particularly relevant to your work and they do not pose a risk to your safety or that of others, you do not need to feel obliged to disclose this information. However, the more information you do communicate to your employer, the better chance they have of being able to provide meaningful support and assistance.
At the same time, it is necessary to note that your employer may not know much about MS. You may have to educate them on what it is, what its symptoms are and how it affects your work. Nevertheless, it is an opportunity to initiate a discussion and you can work with your employer. This is to ensure that appropriate arrangements can be made to allow you to continue fulfilling the requirements of your role.[8] Under federal and state legislation, your employer cannot discriminate against you or harass you if and when you disclose your MS. They must also endeavor to make reasonable adjustments to support you in your role.[9]
I’m worried about where my health information goes
If you are worried about who this information goes to, you can maintain open communication with your employer and ask them about who else will be told about your diagnosis. You can also request the matter be kept as confidential as possible. That it not be disclosed to your colleagues, if you do not want them to know. This may mean you provide them with a specified list of who you do and do not want them to disclose this information to. So you’re your employer can then speak to you about how to proceed. Remember that you are in control and in making these requests to your employer. You are simply exercising your workplace rights, and not doing anything unlawful or questionable.
I have disclosed my MS and now I feel as though I am being discriminated against…
As previously mentioned, it is unlawful for your employer to be discriminating against you or harassing you as a result of your disclosure of MS. Discrimination can be both direct and indirect. Meaning it can occur when someone is treated less favorably because of a personal characteristics. Or where a policy and/or rule treats everyone in the same way but has an unfair effect on certain groups or individuals. It is unlawful for your employer or for any of your colleagues to be treating you less favourably because you have MS. If they are insulting you or making humiliating jokes, then this also constitutes harassment because of disability.
In response to the discrimination you are facing, you may be eligible to lodge a General Protections Application before the Fair work Commission. This will highlight the adverse action you have faced as a result of your disability. You may also submit a Statement of Complaint to a Equal Opportunity Commission or Anti-Discrimination Board to seek compensation for this discrimination.
Serious Health Issue Do I have to tell my employer?
Any questions about Serious Health Issue Do I have to tell my employer? article, call us to discuss. If you are still unsure of whether you need to disclose your MS or any other health concern to your employer. Whether you are facing discrimination or what your options are. You can contact our office on 1800 333 666 to receive an obligation-free consultation with one of our workplace representatives. They can provide you with advice on your situation.
A Whole New Approach are not lawyers, we are the nations leading workplace advisors. If your unfairly dismissed or subject to adverse action in the workplace we can also discuss a general protections application. Termination of employment, diversity in the workplace issues, workers rights. Any Fair work Australia matters including workers rights and employment rights, give us a call.
Another article on sick leave guide in the workplace that may be of interest for you, click here
Article on sacked for not proving a medical certificate, click here
What is dismissal? chick here
Sacked from work, click here
Extended absence from work, can you be dismissed, click here
Dismissed for not disclosing disability-the-harsh-reality-many-face/ click here
Can you be dismissed crying at work click here
Citations
[1] MS Australia, ‘Employment and MS’ (2011).
[2] ‘Disability Discrimination and Employment’, Victoria Legal Aid, (Web Page) https://www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/discrimination-and-victimisation/disability-discrimination-and-employment (‘VLA’).
[3] ‘Disability and the Workplace’, Victorian Equal Opportunity and Human Rights Commission (Web Page) < https://www.humanrights.vic.gov.au/for-individuals/disability-and-the-workplace/.
[4] ‘To Tell or Not to Tell’, MS Australia (Web Page, 2 August 2017) https://www.msaustralia.org.au/living-with-ms/expert-blog/tell-or-not-tell
[5] Ibid
[6] VLA (n 2).
[7] ‘How Much Should I Tell?’, National Multiple Sclerosis Society (Web Page, 2021) < https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/How-Much-Should-I-tell>
[8] ‘Whom Should I Tell?’, National Multiple Sclerosis Society, (Web Page, 2021) <https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment/Disclosure-Decisions/Whom-Should-I-tell”
[9] Equal Opportunity Act 1995 (Vic); Disability Discrimination Act 1992 (Cth).
