How to navigate a Fitness For Work Plan, a tightrope for members.

Date: 13/08/2024

Fitness For Work (FFW) processes are a stressful and sometimes complicated process for workers to navigate. FFW issues often arise in the following scenarios: 

1. An employee makes a request for an adjustment to their ordinary working arrangements due to a disability, injury or illness; or
2. An employee goes on a long period of personal leave (paid or unpaid).

In these scenarios, an employer may question whether a worker can complete their ordinary duties, which can lead to a FFW process. 

The FFW process is something of a tightrope for workers to balance; workers want to ensure they look after their physical or mental health, but not tip so far over that the employer embarks on an investigation into the workers’ ability to perform their role.  

Hopefully, this bulletin helps members navigate this process and explain some tricky concepts. 

NOTE: The answers below relate specifically to a fitness for work assessment initiated by the employer, not an assessment organised through WorkCover. Contact the union if you’re not sure about the differences.

Head to the ASU Member Portal to find out more or download a template response letter to an IME Request: https://members.asuvic.org/

Q. What is Fitness for Work (‘FFW’)? 

Put simply, workers must be ‘ready, willing and able’ to perform their role. An employer may be able to terminate the employment of a worker who does not have capacity to perform their role. 

However, workers have rights if they have disabilities, become unwell or injured, such as: 
• Taking paid personal leave; 
• Putting in a formal ‘flexible working arrangement’ as per the Fair Work Act 2009 (Cth) due to a disability (temporary or permanent) if they have been working for at least 12 months; [can we cross-link to the FWA resource]
• Making a request for a ‘reasonable adjustment’ as per section 20 of the Equal Opportunity Act 2010 (Vic) to perform the genuine and reasonable requirements of their role; 
• Protections against discrimination on the basis of disabilities under federal and state anti-discrimination legislation and the Fair Work Act 2009 (Cth); and
• Unfair dismissal protections if they have been working for at least 6 or 12 months, as per the Fair Work Act 2009 (Cth)

If workers wish to understand these rights more, or feel their rights are being infringed, speak to the ASU as soon as possible. 

If the employer is reasonably concerned that a worker is not ‘ready, willing and able’ to perform their role, even if the worker’s doctor provides clearance, the employer may commence a FFW assessment. This could involve: 
• Seeking consent to speak directly with the workers’ doctor; 
• Asking the worker to get their doctor to complete a medical questionnaire, devised by the employer; and/or
• Asking the worker to attend an independent medical examination (‘IME’)

NOTE: If the employer is being clearly unreasonable, contact the ASU as soon as possible for help with pushing back on unreasonable requests. 

Q. Can my employer require me to present medical evidence demonstrating my fitness for work?

Yes, your employer can require you to present medical evidence that you are able to complete work safely. This is because your employer is legally required to ensure your health and safety at work. However, they can only do so if reasonable, and they need to cover the costs of getting that medical evidence. For example, it may be unreasonable to seek medical evidence to confirm fitness for work if a worker took a couple of days of personal leave due to a cold or flu. Again, if you believe the request for medical clearance is unreasonable, please contact the ASU. 

Q. Can my employer require me to see a doctor that they choose? 

This is a tricky question, but generally the answer is no. If you have supplied sufficient evidence from a treating doctor or healthcare professional of your choosing, then it may not be reasonable for the employer to require you to attend a doctor of the employer’s choosing. This is often known as an ‘IME’ or ‘independent medical examination’. However, if you end up on WorkCover, you may need to end up seeing an IME arranged by the Insurer. 

However, it all depends on the scenario. If you’re unsure, call the ASU as soon as possible. 

Q. Should I allow my employer to come with me to my medical appointment?

No. Under no circumstances should an employer attend a medical appointment, whether it’s with your own doctor or an IME. 

Q. My employer has given me a set of very specific questions in a document they want my doctor to fill out and return to them, do I have to?

No, you cannot be forced to provide consent regarding your medical information. Similarly, your employer cannot compel you or your doctor to present medical information in a particular way. Sometimes the questionnaires that doctors are being asked to complete are presented in a way that tries to box the doctor into providing a particular answer or makes the worker uncomfortable. In these circumstances, you are able to suggest changes to the questionnaire that are fairer or more accurate. Similarly, if your employer asks you to present your doctor with a ‘position description’ or ‘list of duties’ to consider, and the document is clearly inappropriate or inaccurate, you should request amendments to your employer. 

If you are completely uncomfortable the documents your employer is asking for your doctor to fill out, you don’t need to consent to providing it to your doctor. In this scenario, you should just make sure that your own doctor’s report clearly answers the basic question: is the worker fit and able to complete the genuine and reasonable requirements of their role. 

However, keep in mind that if an employer continues to hold reasonable concerns that you are not ‘ready, willing and able’ to perform your role safely, they may ask you to remain home unpaid (unless you access your leave) or they may even seek to terminate your employment. If this happens, contact the ASU immediately.

If you have questions about your rights during a FFW Process, make sure you contact the ASU at [email protected] or on 03 9342 3300. 

Head to the ASU Member Portal to find out more or download a template response letter to an IME Request: https://members.asuvic.org/