The Human Rights Commission recommends:
"Have you an injury or medical condition caused by gradual process, disease or infection, such as repetitive strain injury, which the tasks of this job may aggravate or contribute to?"
What questions are employers entitled to ask prospective employees about their state of health prior to employing them?
Employers want to be satisfied that the people they hire are able to carry out the job and do so safely. As an extreme example an employer would not choose to hire a person with a severe visual impairment to drive a bus or fly an aeroplane. In addition, employers have obligations under the Health and Safety Employment Act 1992 to take all practicable steps to ensure the safety of employees and others at work. To be able to discharge those duties employers need to know whether a prospective employee has a condition or disability which might compromise that person's health and safety, or the health and safety of others, in the workplace.
For instance, a person who suffers from epileptic seizures may be unsuitable for a position which required that person to work at heights or near water and a school board would not wish to place a teacher with active contagious tuberculosis in a classroom with school children.
Legal considerations play an important part in the recruitment process for both employers and employees.
Of paramount importance for both are the Human Rights Act 1993 and the Privacy Act 1993. These Acts place limits on employers during the recruitment process and provide protection to prospective employees from unlawful discrimination and misuse of private information.
Despite these Acts screening job applicants for pre-existing medical conditions has become fairly wide spread in New Zealand. Employers who undertake pre-employment health screening must balance the candidate's right to privacy and freedom from unlawful discrimination, and the need to employ the best person for the job while maintaining a safe and healthy working environment for all staff.
The Privacy Act governs the collection, use and disclosure of personal information about individuals.
This includes health or disability information about a prospective employee. Employers must recognise and abide by the privacy principles under the Act when collecting information in the context of pre-employment health screening.
Almost any form of pre-employment medical screening could be seen as indicating an intention to discriminate on the basis of disability contrary to the provisions of the Human Rights Act. Therefore employers who are going to screen job applicants for pre-existing medical conditions will need to think very carefully about what they want to achieve and how to achieve it whilst complying with the Human Rights Act.
The first thing an employer should do in the recruitment process is to work out the requirements of the job and the core functions which the employee will be expected to perform. It is also important to consider the environment in which the employee will be required to work.
By focusing on the particular functions of the job and the work environment an employer will be able to formulate appropriate questions that relate to prospective employees' health or disability and which do not breach the Human Rights Act or the Privacy Act.
Section 29 of the Human Rights Act provides an "exception" in relation to disability. This section permits discrimination on the grounds of a prospective employee's disability where that person would require the aid of special facilities to perform the duties of the position satisfactorily (and it is not reasonable to expect the employer to provide those facilities) or where the environment in which the duties are to be performed is such that the prospective employee or others are exposed to the risk of harm or injury. Section 29 would apply to our examples of the visually impaired pilot or bus driver or the teacher infected with contagious tuberculosis.
The Human Rights Commission has developed a useful set of pre-employment guidelines to help employers avoid "acts or practices" which may be inconsistent or contrary to the Human Rights Act. The guidelines cover all the grounds of unlawful discrimination including disability. The guidelines are not the law and they are not binding and it would be prudent to seek advice if there is any doubt.
Asking the right questions
It is important that applicants for a job are made aware of the requirements of the job, i.e. what functions they will be required to perform, before they are asked questions about any disabilities or medical conditions which would prevent them performing to the required standard.
If the reason for a question is to determine whether the applicant has the ability to carry out the job or to protect the applicant's health and safety (and the health and safety of others) it is justified and does not breach the Human Rights Act. A question which is too general and does not address these issues is likely to breach the Act. Ideally an employer should avoid asking overly broad or detailed questions about an applicant's health or disability as these may be regarded as obstructive or irrelevant and may indicate an intention to discriminate.
Whether a question is justified will often depend on the nature of the job. If the job involves a high level of keyboard work, for example a data input role, an applicant with a history of OOS caused by previous keyboard work may not be suitable for the role.
Direct questions about previous ACC claims should be avoided although it is appropriate for an employer to ask applicants whether they have an injury or medical condition which may be aggravated by the tasks to be undertaken.
In the end there is a balance to be struck between the rights and duties of employers and those of prospective employees, in particular those that suffer from some form of disability. Care must be taken to ensure the line is not crossed from legitimate enquiry to unlawful discrimination.
Our thanks to Buddle Findlay for this article.