Description

The following revised procedures arose from an independent review of HealthQuest commissioned by the Department of Health during 2000. While the procedures were developed in response to this review, they apply to requests for 'fitness to continue' services from the Government Medical Officer (GMO) or an approved medical practitioner.

Detailed Outline

HEALTHQUEST AND OTHER APPROVED PROVIDERS

The following revised procedures arose from an independent review of HealthQuest commissioned by the Department of Health during 2000. While the procedures were developed in response to this review, they apply to requests for 'fitness to continue' services from the Government Medical Officer (GMO) or an approved medical practitioner.

The review canvassed major issues relating to:

current internal processes and controls in the operation of HealthQuest
HealthQuest's relationship with referring agencies and
the identification of best practice to ensure adherence to the principles of accountability, transparency and procedural justice.
A working party was established to consider the findings and recommendations made from the review. Representatives included the Premier's Department, HealthQuest, the Ombudsman's Office, the Independent Commission against Corruption and the Central Sydney Area Health Service, in consultation with the major public sector unions.

The recommendations approved by the working party have been incorporated into the attached procedures. This Memorandum supersedes Premier's Memorandum 98-01.

As a result of the review of HealthQuest, significant enhancements have been made to procedures relating to employer referrals, employee consultation processes and documentation requirements. In addition, minimum standards have been established to ensure that employee referral procedures are consistent whether agencies use the services of the GMO or other approved medical practitioners.

It is critical to the success of the review of HealthQuest that these procedures are brought to the attention of all Departments and other authorities within your portfolio, including Government Trading Enterprises and State Owned Corporations.

Bob Carr
Premier

Issued by: Public Sector Management Office
Contact: Mr Gary McGrath
Ph: 9228-4381
Email:[email protected]
Date: 5 September 2001
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Supersedes M98-01 and C2000-58

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Revised 'Fitness to Continue' Procedures

PART 1
PRINCIPLES
These minimum standards and guidelines are based on the following principles:

An employer is responsible for ensuring the health, safety and welfare at work of all employees.
An employee must be able to perform the inherent requirements and job demands of their position, and an employer must provide adjustment for the employee to undertake their duties, unless providing the adjustment would cause unjustifiable hardship.
Where the health of an employee prevents them from undertaking the inherent requirements and job demands of the position, or where there is a health and safety concern, medical advice should be sought and the employee consulted so that the most appropriate course of action can be taken.
GENERAL
There are circumstances where a Chief Executive Officer (CEO) or specifically authorised delegate will require medical advice to:

manage situations when the health of an employee prevents them from undertaking the inherent requirements and job demands of their position; or
ensure the health and safety of the employee and others affected by the employee's health and fitness.
The inherent requirements and job demands of a position are the essential duties and responsibilities of that job. The case law on the interpretation of 'inherent requirements' states that an inherent requirement is one that is fundamental, intrinsic or essential to the position. The term 'inherent requirements' carries with it associated job demands. These relate to the job characteristics, which require physical, sensory and psychological capacities, and also any physical, biological and chemical hazards or accident risks that may be associated with a given job. The Occupational Health and Safety Regulation 2001 imposes obligations on employers to assess risks and review risk assessments that have been undertaken previously. Agencies must refer to the Regulation prior to undertaking their risk management strategy.

In many cases a situation will be managed effectively through consultation with the employee and with the assessment and advice of a private medical practitioner, such as the employee's treating doctor. In other cases it will be appropriate, in consultation with the employee, to seek advice from the Government Medical Officer (GMO) or approved medical practitioner.

The GMO is the Director of HealthQuest. HealthQuest is a self-funding, not-for-profit medical service which provides the following services:

pre placement health assessments;
medical examinations to determine fitness to continue;
occupational health and safety training;
work site inspections;
assessment of exposure to physical, chemical and biological hazards;
vaccinations such as influenza, and Q fever;
health promotion; and
consultation.
The GMO is required to undertake medical examinations of employees as prescribed in certain legislation: the Public Sector Management Act 1988, the Superannuation Act 1916, and the Judges' Pensions Act 1953.

Where employees are not covered under the above legislation, a CEO may request the GMO or other approved medical practitioner to undertake a medical examination and make recommendations on an employee's health in relation to their capacity to undertake the inherent requirements and job demands of the position.

In any event, agencies that use the services of the GMO or other approved medical practitioner must adopt, at least as a minimum, the requirements prescribed in the guidelines concerning employee referrals, consultation and documentation processes and access to information.

These procedures do not provide guidance for superannuation purposes. However, it is important to note that superannuation schemes may require additional medical assessments to determine the degree of incapacity and the entitlement to superannuation. Superannuation schemes have different rules governing benefits; it is therefore recommended that the agency and/or employee contact the Superannuation Administration Corporation for advice, telephone 9238 5666.

LEGISLATION AND OTHER RELATED POLICIES

Clause 17 of the Public Sector Management (General) Regulation 1996
Public Sector Management Act 1988
Anti-Discrimination Act 1977
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
WorkPlace Injury and Management and Workers Compensation Act 1998
NSW Workers' Compensation Act 1987 and Regulations
Workers' Compensation (Workplace Rehabilitation Program) Regulation 1997
Disability Discrimination Act 1992 (Commonwealth)
Industrial Relations Act 1996
Performance Management Policy and Guidelines – Premier's Department December 1998
Managing and Supporting Attendance at Work Policy Framework – Premier's Department January 2000
Personnel Handbook (Special Sick Leave)
Employment Health Assessment Policy and Guidelines - Premier's Department April 2000
Taking Safety Seriously: Improving workplace safety management in the NSW public sector, policy and guidelines 1999.

PART 2: GUIDELINES
A Referral of Employees
Both employers and employees have the right to initiate a fitness to continue assessment. Referrals can be directed to either the GMO or an approved medical practitioner in accordance with an agency's employing legislation.

An employee may initiate a fitness to continue assessment if they have a medical certificate stating that, in the opinion of their medical practitioner, they are unfit to continue work.

The employer is required to pay for the fitness to continue assessment whether the referral is initiated by the employer or the employee.

All employers have an obligation under the Occupational Health and Safety Act 2000 to ensure the health, safety and welfare of employees[1]. In addition, the Public Sector Management (General) Regulation 1996 provides for the direction of any public servant by the Department Head to undertake: 'a medical examination or other health assessment as the Department Head may, on the advice of the GMO, consider necessary if the Department Head has reason to believe that the public servant is not fit for work'.[2]

It is therefore in the interests of CEOs or their delegates to seek the advice of the GMO or approved medical practitioner when:

an employee is ill so frequently as to raise the question of fitness to carry out the duties of the position or is absent frequently on sick leave;
an employee's medical practitioner advises that the employee is not likely to recover and is unable to undertake the inherent requirements and job demands of their position;
a medical certificate has been submitted covering a period in which the employee's sick leave with pay will cease and recovery does not appear likely;
advice from an employee's medical practitioner is not relevant to the inherent requirements and job demands of the position and there is still a question of health and safety or doubt as to the employee's fitness;
the employer has concerns about the fitness of an employee to continue to work and the employee will not seek advice from a medical practitioner; or
the employer has concerns about the health and safety of others in the workplace.
Employees are obliged to comply with an employer's request to attend a fitness to continue assessment. Referrals to attend a fitness to continue assessment must be authorised by a CEO or a specifically authorised delegate.

B Minimum Standards for the Referral of Employees
Employers need to be able to provide the GMO or approved medical practitioner with objective, accurate and relevant information in respect of any referral. To this end minimum standards have been developed to assist employers to make appropriate referrals. These are listed below (1 – 5).

In addition to any information required by the GMO via the Request for Services form (HQ1 – attached at Appendix C) or by an approved medical practitioner, a written report must always accompany any referral notice. This report must be submitted by the person in the agency who has the specific delegated authority to refer matters to the GMO. In all but exceptional cases, the section of the report dealing with the work performance of the employee must be undertaken by the employee's immediate supervisor.

The report must:

contain an agreed (where possible) position description which sets out the inherent requirements and job demands of the position;
outline the health-related issue that is affecting work performance;
Note that it is not the role of the GMO to undertake fitness to continue assessments arising from general concerns about performance and attendance that are unrelated to an employee's health and well-being[3].
provide factual information on how work performance is being affected, resulting in the inherent requirements and job demands of the position not being undertaken; In preparing the report it is essential that these requirements be identified and that objective evidence be provided to support the assertions or conclusions made by the employer. It is also important that agencies refrain from making any assumptions about a medical condition in the absence of a qualified medical diagnosis.
outline any proposals to resolve the issue including alternative duties or workplace adjustments; Workplace adjustments can take many forms and include job redesign, re-allocation of existing duties, alternative duties or support mechanisms (eg equipment or additional assistance in the workplace). Details, including information about the job environment, may assist in any future rehabilitation or retraining program.
include all sick leave records in calendar form and any recent medical certificates and related information such as rehabilitation reports.
All referrals must be authorised by the CEO or a specifically authorised delegate.

Note: In preparing advice to the GMO, employers should also refer to section H in this Memorandum dealing with 'Employee Access to Personal Information'.

C Consultation with Employees
It is important that discussions be held with employees when medical advice is being sought to determine whether the employees can undertake the inherent requirements and job demands of their position. This issue is particularly significant when fitness to continue referrals are initiated by the employer. Consultation with employees and sharing of referral information is fundamental to both transparency and procedural justice and promotes efficiency by allowing the employees to prepare for their assessment. Summary information for employees is included at Appendix B.

Employers are required to provide the GMO with a copy of:

the signed referral notice; and
the (signed) accompanying employer report, including any supporting documents.
The employer report should set out in checklist form a summary of the documents attached (a pro forma letter to the employee is attached at Appendix A). The report should also include a summary of essential information for employees (attached at Appendix B).

The HealthQuest Request for Services form (HQ1) provides for the signature of the employer to confirm that a copy of the referral documents has been provided to the employee.

Employers should hand the referral material to the employee in person where possible. When the employee is absent from the workplace, the material should be delivered by registered mail or by courier to ensure that every reasonable effort is made to provide the employee with full information regarding their referral.

Employees have the right to send a written response to the GMO about the information provided by the employer in the referral. Employees should provide any written response to the referral within 14 days of the date of the referral letter and should, if possible, advise the GMO of their intention to provide a written response at the time they are contacted regarding an appointment. Employees may also provide additional information to the GMO at the time of their assessment.

Supplementary Information
While employers may provide supplementary information to the GMO at any time following the initial referral, employees have a right to know what information the GMO is taking into account in making an assessment. Employers are therefore required to provide any supplementary information in writing and to make this available to employees in the same way as the initial referral documentation was provided.

D Assessment by a Medical Practitioner, Occupational Health Professional or GMO
Following a medical examination, GMO or medical practitioner may discuss with the agency the outcome of the assessment in relation to the employee's fitness. The GMO will discuss with the employer only such health matters that relate to the employee's ability to undertake the inherent requirements and job demands of the position and any rehabilitation or adjustment issues. The GMO will not disclose any other health matters without the employee's written authorisation.

The GMO or approved medical practitioner may recommend that:

the employee is fit to undertake the inherent requirements and job demands of their position;
the employee is fit to continue work with adjustments and/or a rehabilitation program;
the employee is presently unfit but will be fit to return to their normal duties;
the employee is unfit now but will be fit to return to modified or alternative duties at a future date; or
the employee is permanently unable to carry out the inherent requirements and job demands of the position.
The role of the GMO is to advise the employer about an employee's fitness. The agency is obliged to use this advice to determine whether or not the employee should be medically retired, since medical retirement is the responsibility of the Department Head. See section on Medical Retirement, below.

E Adjustments
The Anti-Discrimination Act 1977 (NSW) and the Disability Discrimination Act 1992 (Commonwealth) both require employers to make adjustments (services or facilities) to enable a person with a disability who was selected on the basis of merit to carry out the inherent job requirements and job demands of a position.

Many forms of adjustment can be made to the workplace to reduce or eliminate the effects of a disability upon a person's ability to carry out the inherent requirements of a job. This can be undertaken by supporting the capabilities of people with disabilities and assisting them to perform the inherent job requirements and job demands of the position.

The nature of adjustment required needs to be determined in consultation with the person concerned and should not be based on generalisations about particular disabilities. Such an approach acknowledges that there are variations between individuals with particular types of disability, as to the degree of disability experienced by them as well as other characteristics, such as skills, qualifications and experience.

The types of adjustment which may be provided by the employer or recommended by the medical practitioner or GMO could include:

implementing flexible work arrangements such as flexible working hours, or working from home;
vocational retraining and/or job redesign aimed at ensuring the work is adjusted to assist the employee;
purchasing equipment to assist the employee to perform their duties;
providing services or facilities for the employee to undertake their duties, for example by re-arranging workplaces to allow access;
redesigning the position - this could be undertaken in consultation with an occupational health practitioner;
transferring the employee to a more suitable position elsewhere in the public sector through agency level negotiation or through the assistance of the Workforce
Management Centre[4] (WMC), but only when:

it is not possible to offer suitable employment in the same agency or work area for occupational rehabilitation purposes under the Workers' Compensation Act 1987 s. 43A;
the employing agency cannot retrain the employee; or
redesigning the position in order to provide them with meaningful work at their pre-injury/illness level of employment (under s. 33 or s. 50 of the Public Sector Management Act 1988) is not possible.
In implementing adjustments an employer should be aware that there is a hierarchy of rehabilitation goals which should also be considered. The goals are published in WorkCover's Guidelines for Employers' Return to Work Programs (March 2000).

Unjustifiable Hardship
Unjustifiable hardship is a legal defence to a complaint of disability discrimination. An employer must provide services or facilities to enable an employee or potential employee to carry out the inherent requirements and job demands of a position. However, an employer may in some circumstances claim that the provision of such services or facilities would cause the employer 'unjustifiable hardship'.

This defence may only apply in relation to a job applicant or dismissed employee. It does not apply to an existing employee. An existing employee who has a disability and requires services or facilities in order to carry out the inherent requirements and job demands of a position must be provided with those services or facilities.

Unjustifiable hardship is a stringent standard for employers to meet. All the relevant circumstances must be taken into account when determining whether the provision of services and facilities would cause unjustifiable hardship to the employer, including:

an assessment of the adjustments required;
the nature of the benefit and detriment likely to accrue or be suffered by any person;
the benefits or detriment likely to accrue to others;
the costs of the adjustment and the financial situation of the agency;
in the case of the provision of services or the making available of facilities, the existence of an action plan given to the Human Rights and Equal Opportunity Commission (Disability) Discrimination Act 1992 (Commonwealth).
No single factor alone is likely to constitute unjustifiable hardship.

F The Decision
The GMO advises the agency and the employee in writing of the results of the employee's health assessment. The GMO will include with this correspondence advice about the appeals process for those employees who are eligible. The CEO is obliged to act on the GMO's medical advice in deciding what action is to be taken.

Once a decision is taken by the CEO, the agency should discuss the decision with the employee and follow up with written advice to the employee.

Medical Retirement
If advice is received from the GMO that an employee is permanently unfit to undertake the inherent requirements and job demands of their position, the CEO is obliged to act on this advice and medically retire the employee unless alternative duties can be found, since medical retirement is the responsibility of the Department Head. In this case, the agency should inform the employee and, if necessary, direct the employee verbally and in writing to cease duty immediately.

If an employee appeals a decision to be medically retired, the employee may be granted available sick leave, followed by recreation and/or extended leave at the employee's election. The agency may also approve special sick leave subject to the conditions in the Personnel Handbook until the outcome of the appeal is known.

The last day of service for an employee who does not appeal is:

the date the employee notifies the Medical Appeals Panel in writing (within the 21 day period) that an appeal will not be lodged; or
the end of the 21-day appeals period if an employee does not indicate an intention to appeal.
The last day of service for an employee who has lodged an appeal and the appeal is disallowed will be the date the decision is made by the Medical Appeals Panel.

Sick leave may be granted up to the last day of service. If recreation leave is to be taken and not paid as a gratuity, the last day of service will be on the expiration of this leave, and it is from this date that extended leave entitlements are to be calculated.

Superannuation schemes have different rules governing benefits. Some superannuation schemes may require an additional medical assessment to determine a member's degree of incapacity and entitlement to superannuation. In all cases, agencies and employees should seek guidance from the Superannuation Administration Corporation or the employee's own superannuation fund.

G Appeals
Medical Appeals Panel - Review Process
The Medical Appeals Panel is responsible for reviewing the decisions of the GMO or its nominee in certain circumstances. A brochure outlining the role of the Medical Appeals Panel (MAP), the employees it applies to and its review processes may be obtained by contacting the MAP on 9391 9053. The brochure describes in simple terms the role and process that the MAP takes into account in making its determination.

In summary, appeals must be lodged with the MAP within 21 days of notification of a decision by the agency.

Where MAP is advised by the employee that an appeal will be lodged it acknowledges receipt of the employee's application and obtains the file from the GMO. While the employee does not appear before the MAP, they can forward supporting information to the MAP within the 21 day appeals period. The MAP, at its discretion, contacts the employee if further information is required.

Medical Appeals Panel Review Timeframe
The timeframe for the review to be finalised will depend on the availability of information required by the MAP when making a decision. The timeframe will be affected when the employee is referred to a specialist by the MAP and/or when reports from the employee's treating specialist and/or medical practitioner are not immediately available.

When all relevant information is available, the appeal is determined by the MAP. The Chairperson will write to the employee about the outcome of the appeal and will provide copies to the GMO and the employer.

Industrial Relations Commission
If an employee is dismissed on the basis that they cannot undertake the inherent requirements and job demands of their position, the employee may make an application to the Industrial Relations Commission for re-employment or re-instatement, claiming unfair dismissal.

H Employee Access to Personal Information
Employees have the right to access personal information contained on their HealthQuest file apart from documents that are exempt under Freedom of Information legislation. A fact sheet for employees on how to apply for access to their personal information can be obtained direct from HealthQuest.

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PRO FORMA – EMPLOYER'S LETTER TO EMPLOYEE

I refer to my recent discussion with you concerning a referral for a <fitness to continue assessment> with <the GMO/approved medical practitioner>.

Attached please find the referral notice and accompanying employer report. The report contains the following documents/information:

As part of the referral process you are entitled to respond in writing to this report directly to <the GMO/approved medical practitioner> within 14 days from the date of this letter. Alternatively you are able at the time of your medical examination to respond in person, if you wish to do so.

Should we provide supplementary information to <the GMO/approved medical practitioner> about this referral we will write to you again. You will be able to provide a response to this supplementary information in writing or in person, as described above.

Should you wish to clarify any issues in relation to this matter enquiries can be directed to <xxxxx> on telephone <xxxxxxxxx>.

Signature (CEO or officer with delegated authority)

________________________________________________________

ABOUT YOUR FITNESS TO CONTINUE REFERRAL
INFORMATION FOR EMPLOYEES

General
The aim of a referral for a fitness to continue assessment is to seek the advice of either the Government Medical Officer (Director, HealthQuest) or approved medical practitioner on an employee's capacity to carry out the inherent requirements and job demands of their position.

Both employers and employees have the right to initiate a fitness to continue assessment. Employer referrals are to be made only by the Chief Executive Officer or a person with specifically authorised delegation. Employee self-referrals must be supported by a medical certificate stating that the employee, in the opinion of their medical practitioner, is unfit to continue work.

Payment for fitness to continue assessments is the responsibility of the employer even if the assessment is initiated by the employee.

Consultation
Before the referral is made and throughout the decision-making process, your employer is required to discuss the situation with you and to provide you with copies of all information sent to the GMO or approved medical practitioner. This includes:

a copy of the (signed) initial referral letter and form;
any documents attached to the referral; and
any subsequent information provided to the GMO or approved medical practitioner.
Your obligation to attend an assessment
You are obliged to comply with an employer request to attend a fitness to continue assessment. Note that such referrals are made within strict guidelines. Note also that employers have a strong obligation under occupational health and safety legislation to ensure the health, safety and welfare of employees and others in the workplace.

Your response to the referral
You have the right to send a written response to the GMO about the information provided by your employer in the referral. You should provide any written response to the referral within 14 days of the date of the referral letter and should, if possible, advise the GMO of your intention to provide a written response at the time you are contacted regarding an appointment. You may also provide additional information to the GMO at the time of your assessment.

The HealthQuest Report
Following your medical assessment, the GMO will provide both you and your employer with a written report of its findings. For those employees who are eligible, the GMO will include with the report information about the appeals process.

The Decision
Your employer has the responsibility to make a decision on your fitness to continue. This decision must be based on the health assessment provided by the GMO.

Information about HealthQuest
Information on the role of the GMO is provided in the brochure HealthQuest that will be provided to you with your assessment interview information. This brochure outlines the procedures for assessments, decisions, access to personal information and complaints.

REQUEST FOR SERVICES see www.healthquest.gov.au under forms

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Information for Employers / Organisations

General
To avoid delays, please ensure that all the relevant details are completed on the form.
The following are of particular importance:

The authorising officer must be a person with specific delegated authority.
Please ensure that all the information in the ‘Services Required' section is completed and that the relevant supporting documents are attached.
‘Fitness to Continue' requests

A written report should accompany the HQ1 form. The report must focus on seeking medical advice on whether the health of the employee prevents them from undertaking the inherent requirements of their position or negatively affects their health and safety.
Please ensure that the employee is provided with a copy of all referral documents, including the signed report and referral form and any supporting documents. Agencies should refer to Freedom of Information (FOI) legislation and guidelines in determining whether any documents would be exempt.
Employers should hand the referral material to the employee in person where possible. When the employee is absent from the workplace, the material should be delivered by registered mail or by courier.
Inform the employee that they have the right to provide a written response to this referral within 14 days of receiving a copy of the referral material and that they may also provide a response in person at the assessment interview.
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[1] Refer in particular to Occupational Health and Safety Act 2000: s.3 Objects, and s8 Duties of Employers.

[2] Refer to Public Sector (General) Regulation 1996, Part 3, cl. 17 Health and Safety

[3] Refer to the Performance Management Policy and Guidelines – Premier's Department, December 1998 and Managing and Supporting Attendance at Work Policy Framework – Premier's Department, January 2000.

[4] Officers assisted by the WMC in accordance with these guidelines do not have the status of a Displaced Officer under Premier's Memorandum No. 96 - 05 Managing Displaced Employees.

Overview

Compliance

Not Mandatory

AR Details

Date Issued

Sep 5, 2001

Review Date

Sep 29, 2006

Replaces

Replaced By

Contacts

Contact: Contact us
Phone: 02 9228 5555
Publishing Entity: Department of Premier and Cabinet
Issuing Entity: Premier