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Employee's Medical Information: Privacy vs Public Welfare

30 April 2015

You can’t open a newspaper lately without reading about the recent Germanwings crash and the British Airways pilot who killed his wife and planned to crash his jumbo jet to “make a statement”. Employees are entitled to privacy, especially about medical matters, but when the public is at risk does the balance between employee privacy and public welfare shift?

When is an employer entitled to probe into its employees’ mental and physical health? There are many legal, and often competing, considerations that come into play, for example:

• Anti-discrimination under the Human Rights Act 1993;
• Privacy;
• Health and Safety;
• Public wellbeing; and
• General employment law issues.

Generally speaking if an employer has a proper purpose (e.g. concerns about health and safety or the employee’s ability to perform the role) it may ask questions about an employee’s mental and physical wellbeing. This ability to ask does not come with an automatic entitlement to receive such information. However, where health and safety is at stake an employee’s refusal to provide such information may be misconduct and grounds for a disciplinary investigation.

Employers cannot discriminate against people with disabilities (mental or physical). However, it is not discrimination to base a decision on an employee’s ability to perform a role (even if this stems from a disability).

Prospective employees aren’t required to disclose every medical issue. Health related questions need to be specific and relevant to the role. Asking for broad information is a breach of the Privacy and Human Rights Acts. Instead it’s a good idea to provide applicants with complete job descriptions and ask if they suffer any physical or mental illness or injury which would impact their ability to perform the role.

Questions like these require honest answers from applicants. In a world where unfortunately there is still stigma attached to mental illness, applicants may be reluctant to disclose relevant illnesses. If an employer discovers an employee has lied in a pre-employment form it could be grounds for dismissal, especially where an employee has lied about an illness relevant to their ability to perform the role.

Once employers have any health related information they should use that information positively to help employees in the workplace and ensure the safety of all those affected. Had Germanwings known of the pilot’s mental instability, it could have provided additional support and taken steps to ensure passenger, public and pilot safety.

Good employers will provide EAP services to their employees; better employers will take a proactive approach to ensuring employee wellbeing. This involves actively helping if they notice odd behaviour or become aware of issues employees may be facing.

In a high stress or safety sensitive work environment, especially one where other peoples’ lives may be at risk, it is essential to have policies in place that give the employer the right to ask whether the applicant has any psychological or physical illnesses, and to keep on asking. Where the risks are high there is a greater onus on employers to be extra vigilant about all aspects of health and safety (including the effects of mental illness) and take proactive steps to get the information required about the employee’s health. If an employee refuses to supply the information required, formal steps must be taken against that employee.

Gillian Spry

 

Gillian Spry is a Partner in the Employment team at Norris Ward McKinnon. Gillian can be contacted at gillian.spry@nwm.co.nz

 

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