Can my employer ask me about my medical history during the recruitment stage?

During the recruitment process, your employer may ask you questions pertaining to your medical history relating to your ability to perform the inherent requirements of the role. Section 351 of the Fair Work Act 2009 (Cth) makes it unlawful to discriminate against a prospective employee because of a physical or mental disability, among other characteristics.

The lawfulness of the questions depends on whether or not it is for a legitimate purpose and if the questions are a reasonable means of the legitimate purpose. For example, if the employer is asking to ascertain if changes need to be made to the workplace to accommodate the disability. Questions relating to your medical history will be unlawful if they are asked for the purpose of identifying a disability so you can be eliminated from the selection process.

While you are not under a general obligation to disclose a disability, if it has the potential to endanger your or your colleague’s safety then you must disclose it to your employer, such as your ability to operate any machinery.

There are some organisations, like Victoria Police, that require disclosure of medical information during the recruitment process. This is considered reasonable due to the inherent requirements of the job.

If you feel that you have been discriminated against because of a mental or physical disability then you should seek legal advice.