The framework for independent medical examinations (IME’s) under the Public Service Act 2008 remains the same during the coronavirus pandemic, however agencies should carefully consider the need to proceed with independent medical examinations at this time. Agency obligations for fairness, respect and communication remain the same and are key to ensuring that employees are supported during what is an inherently stressful time.
Consideration should be given to factors that may be different due to the coronavirus pandemic:
- Current social distancing requirements may make face-to-face meetings and/or the examination impractical, so teleconferences and telehealth (examination by video conference/phone) may be an option.
- Where an examination can proceed through telehealth, it is the employer’s responsibility to provide the necessary equipment and/or facilities for the examination – though an employee may wish to use their own equipment, for example smart phone.
- Current pressure on health system generally may reduce the availability of examining practitioners.
- The employee may experience anxiety and stress, and there may be delays seeking advice from their union.
- How will the report findings be communicated to the employee?
- What is appropriate action to take in the current circumstances following receipt of the report?
- Procedural matters such as reasonable timeframes for the employee to respond.
Pandemic Plus IME questions
Taking the possible impacts on an employee’s ability to seek advice into account, allow additional time for the report to be considered, and for an employee to respond through a natural justice process.
IMEs that require a physical examination may be less suited to telehealth. The independent medical practitioner will be able to advise on the suitability of telehealth as an alternative to the employee attending their appointment in person.
The independent medical practitioner will be able to advise on the most suitable location for an IME–generally this will be at the practitioner’s consulting rooms, or by telehealth.
4. If an employee claims the IME is causing them stress because of the current pandemic, should the agency pursue the IME even though the grounds for pursuing it are sound for the purposes of the Public Service Act 2008?
This is a question for the decision maker. Decisions about IMEs should not be made because of the pandemic. Rather, the pandemic and its impact on the employee should be taken into account. Agencies should engage with the employee and, where relevant, their treating practitioner, about the employee’s particular circumstances.
5. Should we reconsider decisions during the pandemic that we would normally make in usual circumstances?
Agencies should carefully consider the impact of the pandemic when making decisions about IMEs. This does not automatically mean decisions are reconsidered. Decisions about IMEs should not be made because of the pandemic. Rather, the pandemic and its impact on the employee should be taken into account.
An employee can be directed to submit to a medical examination where the test at section 174 of the Public Service Act 2008 is met. The Act does not limit the number of IMEs to which an employee may be sent. However, IMEs are to be used for a specific reason rather than to generally seek out medical information that may or may not exist. Rather than seeking multiple opinions, agencies should focus on active exploration of rehabilitation options or engaging directly with the employee and their treating practitioner. In this context, it is useful to focus on what can still be done to support the employee within the agency, and how the further medical information can assist with implementing additional supports.
7. What if you can satisfy both elements of section 174, can you rely on both even though the section uses 'or' where there is evidence of absence AND unsatisfactory performance?
The Public Service Act 2008 requires the employee to be either absent from duty or not performing their duties satisfactorily and the chief executive is reasonably satisfied the absence or performance (as relevant) is caused by mental or physical illness or disability. The Managing employee health, safety and wellbeing–independent medical examinations (Public Service Act 2008) guideline reflects this interpretation. It is not necessary to rely on both elements of section 174. Where performance is unsatisfactory, there should be clear evidence of the steps taken to manage performance and the basis for suspecting that mental or physical illness or disability is the cause.
8. What is an acceptable absence for an employee to be away from the workplace before an IME can be considered?
Each IME should be considered on a case by case basis. The Public Service Act 2008 does not require a minimum duration of absence, rather the decision maker needs to be reasonably satisfied the requirements of the Act are met. Where an employee is currently absent, contact should be supportive and steps taken to understand what support, if any, the employee may need to return to work.
9. If an agency is not covered by the Public Service Act 2008 in respect to employment including IMEs, do you have any tips for practitioners?
The underlying principles of respect, communication and fairness apply. The Managing employee health, safety and wellbeing – independent medical examinations (Public Service Act 2008) guideline, while based on the Public Service Act 2008 requirements, also provides practical guidance reflecting these principles.
10. What are your thoughts on how the Human Rights Act 2019 may interplay with any decisions to proceed with an IME and decision to take action?
The Human Rights Act 2019 creates an obligation for decision makers to consider relevant human rights when exercising a discretion that affects an employee. The decision to direct an employee to an IME will require consideration of the employee’s human rights, particularly the right to privacy and protection of reputation. Cultural rights may also be impacted, depending on the employee’s particular circumstances. Visit the apply human rights to your work webpage for more information.