How much information can an employer legally request from job applicants about their mental health during recruitment?
The issue of requesting medical information from job applicants is one that should be approached with care. In general, requests for information about mental health should be treated in a similar way to requests for information about physical illness.
In particular, employers should ensure that any requests for medical information is conducted in a manner which reduces the risks of potential claims for discrimination or general protections matters under the Fair Work Act 2009.
To reduce the risk of claims, it is important to be clear about the reasons for which information about medical conditions such as mental illness is sought.
Requests for information should be tailored to the specific requirements of the role. It can be more problematic if employers ask broad questions about any medical conditions that may exist. This is particularly so if the requests for information could be seen as a general screening process during recruitment.
Information about medical conditions may only be appropriate in a limited set of circumstances. Such circumstances may include:
Please note that the laws of discrimination and workers’ compensation are complex and employers should seek comprehensive advice before including questions during the recruitment process which might impact of any relevant obligations.
Information that is sought from a job applicant may not be covered by the ‘employee records’ exception of the Privacy Act 1988, as the information does not relate to a current or former employee. This means that an employer may have more extensive obligations in regards to the collection and handling of such information under that statute.
In addition, both New South Wales and Victoria have specific legislation protecting the privacy of health information. This means that both the Health Records and Information Privacy Act 2002 (NSW) and the Health Records Act 2001 (Vic) should be considered when determining the obligations of prospective employers. Any other relevant legislation should also be considered. For example, in Queensland the Information Privacy Act 2009 regulates the handling of personal information (which includes health information) by public sector agencies.
For more information and to confirm your obligations or liabilities in this area, please call the Ai Group Workplace Advice Line on 1300 55 66 77. Particularly complex queries, especially in regards to the interaction of workers’ compensation law, can be referred to specialist teams if necessary.
