Can an employer get medical information from an employee’s doctor?

by The Findlaw Team

Situations sometimes arise where an employer needs information about an employee’s medical condition or claim of ill health. For example, if they’ve been away from work due to injury or ill health, the employer may need to take measures to protect the employee’s health and safety when they return, and they can’t do this unless they know what’s wrong with the employee and what a health professional recommends.

Medical professionals are bound by the Health Information Privacy Code 1994 (revised in 2008), which modifies the Privacy Act 1993 specifically in relation to health information provided by “health agencies”. The code limits the disclosure of health information, so if an employer asks a doctor about an employee’s health, the chances are that the doctor cannot provide that information without the employee’s permission.

If an employer wants more information on an employee’s medical condition, they will need to get the employee’s permission to obtain that information from their doctor. The employer should make it clear what the consequence may be if the employee refuses. For example, the employer may be able to require an employee who is off work recovering from an illness or injury to provide them with medical advice about the measures needed to protect their health, before the employee will be permitted to return to work.

Many employers include a medical verification clause in their employment agreements. These clauses give the employer the right to require the employee to undergo a medical examination (at the employer’s expense), and be given a medical report on the examination, in specified situations, eg to determine whether it’s appropriate for the employer to grant the employee ongoing sick leave, to decide whether the employee’s employment should be terminated on the grounds of medical incapacity, to assess whether the employee is fit to return to work, and to get a second opinion where the employee has already provided a medical certificate.

Case example: Depressed employee refused to provide medical information

The employee was a customer services representative who was frequently absent and late for work. Almost 11 months into his employment, the employee he told his manager he was suffering from depression.

Less than two weeks later, the employee left work early and never returned. Instead, he provided a series of medical certificates certifying him as unfit to work for a specified period (around two weeks), subject to review.

The company requested further medical information and contact details to talk to the employee’s counsellor about his prognosis for returning to work and how the company could help with his rehabilitation.

The employee was not forthcoming with this information, despite being warned the company may need to consider terminating his employment without it. After almost two months' absence, the company dismissed the employee.

The Employment Relations Authority observed the law is clear that an employer is not bound to hold a job open indefinitely where an employee is no longer able to perform the duties for which they were employed. However, a decision to terminate the employee's employment must be justifiable.

The Authority noted the employee’s lateness and absenteeism had commenced less than one month into his employment and had continued thereafter. At the time of the termination of his employment, the employee had been absent for approximately 62 working days during a period of employment of some 13 months. This significant level of absenteeism had created operational problems for the company.

The Authority said that an employer managing a situation in which an employee is suffering from medical incapacity is required to carry out a full and fair investigation into the employee's true medical position, encompassing their present state of health, future prognosis and the expected length of time way from the workplace.

The Authority considered whether the company could have used the provision in the employment agreement to require him to undergo a medical examination. The Authority accepted the company preferred to obtain the medical information with the co-operation of the employee, rather than by utilising a contractual right that could have been invasive and possibly damaging to a mentally ill employee.

The Authority noted it is not unusual in this type of situation for medical professionals to communicate with employers. Medical practitioners with the permission of the employee can, and do, provide information to employers without disclosing intrusive personal information which is helpful to an employer in managing an employee's absence.

The Authority concluded that the company's decision to terminate the employee’s employment was a decision a fair and reasonable employer could have made in all the circumstances.

Lawrie v Air Liquide New Zealand Ltd (2013)

Case example: Employer approached employee’s doctor without permission

An employee complained that her privacy had been interfered with after her employer contacted her doctor. The employee was on sick leave, and had faxed her employer a medical certificate. The employer claimed that the certificate was illegible, and so asked the doctor to verify that it was in order.

The employer also asked the doctor about the employee’s medical condition. However, the doctor refused to give any details.

The Privacy Commissioner felt that, because the doctor didn’t give any information on the employee’s medical condition, principle 2 of the Privacy Act had not been breached.

Case note 8744 [1996], Office of the Privacy Commissioner.

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