You’re an employee, you’ve been off sick and you’re ready to return to work. But your employer says you need to go to an “independent medical examination” (IME) before you can return to work. Can they make you?
Your employment contract or applicable enterprise agreement may contain specific provisions about this. Generally, an employer can direct an employee to attend an independent doctor to clarify their working ability as long as it is reasonable, eg after a significant injury or extended absence on sick leave. Beware though because it is a common tactic for employers who want to end employment due to real or perceived incapacity, to avoid managing performance issues or to reduce their workforce without added redundancy costs.
You should not refuse a direction to attend an IME. Nor should you blindly hope for the best. There is no “one size fits all” approach, but you might be able to:
1. Suggest the report is not necessary if it is a simple injury or the absence has only been short;
2. Suggest that a simple clearance, or alternatively a report, from your own GP/treating specialist is enough;
3. Ask the employer about the questions to be asked of the doctor and the materials to be provided. It is important that only questions relevant to your particular condition/injury and how they relate to the requirements of your role are asked;
4. Ask for a copy of the employer’s instructions and materials and any report provided by the doctor;
5. Ask the employer to provide a panel of 3 doctors for you to choose from or nominate your own panel of doctors;
6. Provide information from other sources such as workers compensation medical reports to satisfy the employer’s concerns;
7. At the very least, seek assurance that there won’t be a significant delay in the examination or provision of the report.
What if the employer wants access to your medical records, and is insistent? Well, you could give permission for the employer to simply speak with your doctor as an alternative or you could restrict any authority to records relevant to your condition. If the employer is unwilling to bend, then you should consider whether there is any dispute process you can use such as an enterprise agreement dispute mechanism.
If you are an employer, you need to consider whether sending the employee for an IME is the right thing to do. What will be the cost of the report and the timeframe? And what happens if the doctor gives an unexpected answer or recommends a graduated return to work or a conditional clearance with limitations which might be difficult to accommodate. Dismissing an employee in these circumstances can be dangerous and there may be other options available.
It’s wise to seek advice before committing to a certain path. Please contact us if you would like any further information or help.