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What Do You Mean You Didn’t Know About My Bad Back? Employee Disclosure Obligations

Published August 29, 2014 (last updated June 24, 2020) -
Hand Holding Pen Filling Out Employee Disclosure Form

Our clients often want to medically screen employees prior to their engagement or at least ask them to complete a pre-employment form regarding any illness or disability they suffer from. However, there is no legal obligation for an employee-to-be to disclose any disability or illness, unless it might be reasonably expected to impact their ability to perform the requirements of their job.

As such, failure by an employee to disclose an illness or disability that has no effect on the performance of their ordinary duties will often have no effect on any worker’s compensation claim they bring for any worsening of that injury through their employment. However, employees with physical injuries or disabilities involved in labour-intensive positions may harm their chances of a successful Work Cover claim for failing to disclose these conditions.

The matter becomes far more complex in relation to mental illness. Ultimately, where an employee has a mental illness, disclosure will only be considered reasonable where the condition might foreseeably put the safety of them or their colleagues at risk. Further compounding matters is that often these conditions are undiagnosed, or can be triggered by conditions in any given workplace.

A report published by Safe Work Australia in 2013 has identified that mental stress claims are the most expensive form of workers’ compensation claims, and among professional employees well over a third of claims are being lodged in relation to ‘work pressure’.

Not only is the usefulness of screening and questionnaires largely dependent on the accuracy of details provided to the prospective employee, the use of pre-employment health questionnaires and checks can also increase the risk of claims for discrimination or adverse action. Unsuccessful candidates may seek to argue that they were not offered the role because of an illness or injury they disclosed during the interview process.

Therefore, we recommend that these checks and questionnaires are only conducted where necessary to ensure that the employee is able to perform the inherent requirements of the role. The request is justified in this instance. In general, diligent management of employee safety and wellbeing (physical or emotional) is often a more useful strategy for reducing business risk.

If you have any queries relating to health questionnaires or concerns and would like assistance putting in place appropriate practices and documentation, please contact Employsure on 1300 651 415.

By Harry Hilliar – Employment Relations Adviser

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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