Medical condition how do i manage it in the workplace

Disclosing a medical condition to an employer, whether during the recruitment process or as an employee, can be very daunting. Many people fear that doing so will open themselves up to being discriminated against. (and many are) And not only that, they simply may not feel comfortable disclosing such private information about themselves.

So, when are you legally required to disclose a medical condition to your employer? And can you be fairly dismissed for not doing so? In this article, we answer these questions and more to provide all you need to know if you’re facing this scenario. And we provide examples of recent unfair dismissal and general protections discrimination cases to show you how the Fair Work Commission and the courts often rule on such matters.

The fear of disclosing your medical condition to your employer

It’s understandable that many employees are filled with trepidation about disclosing their medical condition to their employer. During the recruitment phase, you may think that doing so could lead your prospective employer to not hire you. Or that they may offer you less salary because of your condition, but never tell you that’s the case.

As an employee, you may think your manager or co-workers may treat you differently – and not in a positive way. You may also believe that disclosure could lead to your manager altering your responsibilities to your detriment. Or that they may overlook you for a promotion. You might even think that they could seek to have you dismissed by inventing another reason unrelated to your medical condition. Deceptive and misleading employer conduct like this is more common than you think. You can read more about it in our article here.

Do I have to disclose my pre-existing medical condition to an employer?

There is generally no legal obligation to disclose your medical condition to your employer. This applies both during the recruitment phase and as an employee. However, you are generally obligated to disclose your medical condition if its symptoms and side effects can affect your capacity to safely fulfil your role.

It’s not necessary to disclose your medical condition to your employer if:

• It won’t cause you to have difficulty performing your role.
• You believe that your employer won’t offer support.
• You reasonably believe that you could face discrimination or harassment at work.
• You don’t need your employer to provide support.

What are the benefits of disclosing your medical condition to your employer?

While there’s no need to disclose your medical condition if it won’t affect your ability to perform your role, there can be benefits in doing so. For instance:

• Your employer can provide you with support at work to make your life easier. For instance, they could allow you to work from home. To work flexible hours or give you extra time to perform tasks.
  
• Your employer will understand that if your medical condition affects your performance, it’s not because you weren’t working hard or competently.
  
• Your employer can allow you to take time off to attend medical appointments if needed.
  
• Your colleagues can offer a more supportive environment.
  
• You can avoid the anxiety of lying or withholding information from your employer and colleagues.

Another benefit of disclosing your medical condition to your employer is that it can help if you need to make an unfair dismissal or general protections discrimination claim later on. This was highlighted in the recent unfair dismissal case Joel Harris v Securecorp NSW Pty Ltd [2022]. It involved a security guard, Joel Harris, who failed to disclose his pre-existing anxiety medical condition to his employer. Securecorp, prior to commencing employment with them.

After four years of employment with the company, Mr Harris was dismissed in March 2022 for his regular misbehavior. This included sleeping on the job, intimidating colleagues and leaving work early with the premises unsecured. He subsequently made an unfair dismissal application with the Fair Work Commission. Mr Harris argued that his instances of misbehavior were minor and therefore his dismissal was unreasonable. He also argued that Securecorp didn’t take into account his anxiety condition when dismissing him.

Employee was fairly dismissed

However, Mr Harris had never disclosed his medical condition to his employer, only after he had been dismissed. Securecorp argued that this non-disclosure prevented it from fully considering his suitability for his job prior to hiring him.

The Fair Work Commission ultimately rejected Mr Harris’ argument. It found that he had been fairly dismissed for multiple instances of not complying with workplace policies. The Fair Work Commission also ruled that Mr Harris’ failure to disclose his medical condition to his employer prior to commencing his role absolved Securecorp of needing to take it into account when it dismissed him.

Can I be dismissed for not disclosing my medical condition to my employer?

In the previous case, Mr Harris had been dismissed not for failing to disclose his medical condition, but for a pattern of misbehavior. But what if you are dismissed specifically because you didn’t disclose your medical condition to your employer? If an employer asks if you have a medical condition that can affect your capacity to perform your role, and you make false or misleading claims, it could be used as a fair reason to dismiss you.

If you are dismissed for this reason, and your ability to perform your role was compromised due to your condition, it’s generally unlikely that challenging your dismissal through the Fair Work Commission will be successful. However, if your ability to perform your role wasn’t compromised by your undisclosed medical condition, it’s generally likely that your dismissal would be deemed unfair.

What if my employer discriminates against me after learning of my medical condition?

The general protections provisions in the Fair Work Act 2009 make it unlawful for an employer to discriminate against an employee based on their medical condition, among other characteristics. This means an employer can’t dismiss you. Or alter your employment to your detriment or choose not to recruit you because you have a medical condition.

The Disability Discrimination Act 1992 requires all Australian employers to make reasonable adjustments in order to accommodate those suffering from a medical condition. If you’re treated unfairly by your employer based on your medical condition, you can make a general protections claim with the FWC. To understand how such discrimination claims can be treated by Australia’s courts and tribunals, let’s look at an example.

Bus driver dismissed from recruitment process for not disclosing medical condition

In the general protections discrimination case – Chalker v Murrays Australia Pty Ltd [2017] – a bus driver was dismissed during the recruitment process for failing to disclose his medical condition to his employer. During his interview with Murrays Australia in 2015, bus driver Greg Chalker was asked a very specific question. That is: “Do you suffer from any medical condition, disability or injury that may have an effect on your performance of the duties in the job for which you have applied?”

Mr Chalker answered in the negative. However, in 2014 he had been diagnosed with borderline personality disorder. Mr Chalker didn’t think that his medical condition would affect his performance in the role. This was because he had been driving a bus for another employer for more than a year since his diagnosis. During the interview, he was informed that he would need to take a medical assessment as part of the recruitment process. Mr Chalker was specifically asked if there was anything that would prevent him from passing the assessment.

Employee dismissed from recruitment process after failing medical

As part of the medical assessment, Mr Chalker was required to take a urine test. This revealed that he had certain drugs in his system. He had not, however, told the nurse that he had been taking any prescription medication until after he was informed of the result. He also then revealed that he had been diagnosed with borderline personality disorder. Mr Chalker was later declared “temporarily unfit” by the doctor, who said he would need to undergo another medical assessment. It was also deemed, however, that Mr Chalker’s diagnosis wouldn’t impair his ability to safely drive a bus.

Despite this, Murrays Australia declined to administer the second assessment. This came after it deemed that “there will be problems down the track with [Mr Chalker] because of his behaviour.” Murrays Australia decided to dismiss Mr Chalker from the recruitment process, and he subsequently made a general protections discrimination claim.

Employee has his general protections hearing

At his NSW Civil and Administrative Tribunal (NCAT) hearing, Mr Chalker argued that Murrays Australia had discriminated against him. That is, due to his medical condition. Murrays Australia argued that it had dismissed him from the recruitment process because he had been dishonest. That is, by failing to disclose his medical condition.

The Tribunal, however, found that Mr Chalker had been honest during the recruitment process and medical assessment. It noted that for more than a year he had been driving buses for another employer. This was despite his borderline personality diagnosis. Mr Chalker hadn’t been involved in any accidents or incidents, and he therefore sincerely believed he was fit to perform the role at Murrays Australia.

The Tribunal also found that there was no evidence to suggest that Mr Chalker’s medical condition would affect his ability to perform the role on offer. It accepted Mr Chalker’s statement that he hadn’t revealed he was taking medication because he didn’t believe it would affect his ability to perform the role. The Tribunal therefore found that Murrays Australia had discriminated against Mr Chalker because of his medical condition. He was awarded $10,000 in compensation.

Employee rights and precription cannibis

The Fair work Commission has upheld the dismissal of the employee for failing to disclose his use of prescription medicinal cannabis on his days off. This was despite the fact he passed all drug tests and left a 32-hour buffer before the start of his working weeks.

The employer stood down and dismissed the employee in February. This was after host BMA removed his site access following a “near miss” safety incident at its Caval Ridge mine. Further his disclosure pre-drug test that tetrahydrocannabinol (THC) might show up as he had been taking prescribed medicinal cannabis. The employer accused the employee in a show cause letter of serious misconduct. Because of breaching its alcohol and other drugs policy.

Although he did not fail any drug tests, the employer argued that he also disregarded a requirement in his employment contract to disclose prescribed medication. Anything that could impair judgement, coordination or alertness to his employer before starting work.

Treatment continued after indicating he had stopped

The tribunal heard that the employee, who calibrated processing units for the preparation of explosives in mining applications sought out a doctor registered with the Federal Government to prescribe medicinal marijuana in 2021. In order to treat his anxiety and insomnia as his family doctor proved unable to do so.

While he initially disclosed his medical cannabis prescription to Platinum, with a THC level of 20% to 25% (10mg), he soon after followed-up with information from his family doctor indicating that he would stop using it and instead switch to using fluoxetine (Prozac). The operator told the FWC that he saw his family doctor about getting off the medical cannabis because he felt “mistreated, distrusted and discriminated” after declaring it.

But he claimed that after receiving the fluoxetine, his “health was suffering without the medicinal cannabis”. He decided he would be “happier and better mentally by going back to cannabis script while on his weeks off from work”. The employee said he therefore resumed his medicinal cannabis prescription but took a lesser amount. He has self-tested to ensure he was unimpaired and took on board the advice of two doctors that his usage was “okay as long as he passed the drug tests”.

Working a seven-day-on, seven-day-off roster, the operator said he only took the prescribed cannabis on his rostered days off and always left a window of 32 hours before starting a new working week.

Policy and contract clearly oblige disclosure

Deputy President Lake found that on a plain reading of the employer’s policy and the operator’s employment contract, he made an “incorrect assumption” that he had no obligation to disclose his prescription medication if it would not impair him at work. The phrasing – “may affect or impair”, “of any potential impairment” and “could impair” – in the policy and employment contract indicated “the possibility of impairment rather than a measurable assessment of impairment”, the deputy president said.

He said it “seeks to address the possibility of impairment when using the prescribed medication even if that possibility is minimal or non-existent”. Despite his apparent efforts to ensure he was not impaired before working on site, the deputy president found that “the use of the prescription medication did have a possibility of impairment”.

A letter from the prescribing doctor in 2021 also indicated the operator “was not to use medicinal cannabis before or during” periods of work. “which indicated possible impairment of using cannabis”, he continued. However, the primary issue was that the operator had informed the employer that he was no longer using the medicinal cannabis and was seeking an alternative. This was while his employer over the following months made repeated attempts to notify him of his requirement to disclose any prescription medication.

After work argument fails

Holding that his failure to disclose his resumed use provided a valid reason, Deputy President Lake said the fact the operator was taking medicinal cannabis out-of-hours “is not accepted”. Considering he did so “to deal with his anxiety and insomnia which are risks that the employer had to account for in their workplace”.

“It was evident through the medical management plan that [the operator] was dealing with these issues and these medications would affect his performance at work,” “It also supported the [operator’s] argument that there was a very low possibility of impairment with the way he was using the cannabis,”

Deputy President lake

Noting that although the operator did not disclose his use of medicinal cannabis, he did not fail his drug test, or any other drug test during his employment. The deputy president accepted it “indicated that he did make efforts to ensure that he was not impaired at work and was responsible in his usage of the medicinal cannabis”.

FWC states you must disclose all drug use

Had the operator not gone through the drug testing process and received Platinum’s multiple disclosure requests, Deputy President Lake said he “would have accepted an argument of harshness in the dismissal process considering that the [operator] did not fail any drug test seeming to indicate he was not impaired at work. Undertook the drug test when requested. . . and the effects of his termination causing some financial hardship”.

However, he found the operator’s case was “weakened because the employer was very clear on multiple occasions that any disclosure of prescription medication, including the medicinal cannabis and fluoxetine” was to be updated. “This was not a brief session, or a singular email. But a process which lasted three months between October 2021 and December 2021. This was where the [operator] was required to speak with a medical practitioner, fill out a medical management plan and worker capacity evaluation”.

The deputy president said he failed to “follow these instructions and did not disclose his resumption of the medicinal cannabis or that he was not using fluoxetine”. This was until he was required undertake the test in February. He was apparently concerned that he might be found to have a positive THC result.

Sheldon Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465 (26 September 2023)

Conclusion to: Disclosing a medical condition: Your rights

Have you faced issues for not disclosing a medical condition to your employer? Subjected to adverse action, or workplace harassment get advice now

If you have been dismissed, or faced disciplinary action or failed an interview because you didn’t disclose your medical condition to your employer, AWNA can help. We are Australia’s leading workplace representatives and commentators. AWNA are not lawyers, nor do we want to be. We can help you easily make an unfair dismissal or general protections discrimination claim through the Fair Work Commission. You can benefit from our no win, no fee service – and your first consultation with is free.

Call us today on 1800 333 666 for a confidential discussion about your situation and how we can help. We work in all states, including NSW, Vic and QLD

Articles similar to: Disclosing a medical condition:

When is it ok to disobey a lawful employer direction

What is my general protections case worth

Dismissed for bad medical advice