This is a tough one: employers need to make sure that they take care of their employees and, in the case of WorkCover claims following an injury, do not return them to duties for which they are not ready. They have a duty of care to employees which medical records assist them to carry out properly.
On the other hand, employees can feel subjected to too many tests; too much poking and prodding. Whilst you are required to follow an employer’s reasonable and lawful directions, you have a right to privacy – and therein lies the tension.
As is always the case, whether your employer can rightfully request medical records will depend on the circumstances of your claim. Every case is different.
Given that under the WorkCover scheme, employers must provide employees with suitable duties for 12 months post-injury, it is arguably a reasonable request for the employer to request medical records specifically relating to your WorkCover injury, in order to assist them in assigning you with appropriate work.
It would not, however, be reasonable for the employer to request records of your full medical history.
From an employer’s perspective, should they determine that you are no longer able to perform the key requirements of your position, this must be done so with appropriate supporting documentation. The flip side to this is that the employer cannot accommodate revised duties for you if he or she cannot formally be provided with evidence of what you are able to perform.
It can be. Under the Queensland statute, where a claim is being processed by WorkCover, steps such as compulsory conferences can be involved. If WorkCover determines that your employer has been a contributor to the workplace injury, your employer has right of access to any ‘relevant documents’ which include medical records. This is in order to come to an agreed arrangement over who pays what for the damages you have incurred.
Your medical records are confidential and an employer’s request for more information is generally only considered reasonable when it is required to determine, for example from a health and safety perspective, whether you are fit to return to work or to carry out moderated duties. This is supported by state and national privacy laws which require that only as much information as required – and nothing more – is collected. There have been recent cases where an employee has been dismissed because of refusal to partake in medical assessments reasonably required of them.
If, following a workplace injury, your employer asks you to obtain a medical assessment with their own doctor to determine the nature of duties you might be able to return to, it would be unreasonable to refuse this. It may be reasonable, though, to see your own regular practitioner who knows your health and history rather than using the employer’s choice of doctor.
This article has covered scenarios in which, reasonably, there are medical records which your employer may require: these may include for the purposes of partaking in WorkCover negotiations (where they might be deemed a ‘contributor’) or ensuring that your return to work is done safely and fairly, and within the bounds of your current capabilities.
This, combined with the fact that privacy laws require only the information required to be accessed, means that it would be unlikely that accessing all medical records would ever be a reasonable requirement.
There may, however, be circumstances where records relating to a pre-existing condition which has worsened because of your workplace injury, are relevant to the employer.
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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