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Germanwings crash underscores value of health checks: Employment Lawyers – Australian Financial Review

By Alan J. McDonald


McDonald Murholme’s Senior Associate Andrew Jewell provided commentary on the Germanwings plane crash tragedy and the impact of mental health in the workplace. Under provisions in workplace health and safety laws, employers have an obligation to provide employees with a safe working environment. See below article for further details.

Germanwings crash underscores value of health checks: Employment Lawyers – Australian Financial Review

The Germanwings plane crash should serve as a reminder to Australian employers that thorough medical checks are always required when a worker has other people’s lives in their hands, employment lawyers say.

Lufthansa, which owns Germanwings, has revealed on Wednesday that Andreas Lubitz, the co-pilot of a plane that crashed in the French Alps,  had told his employer he had depression in 2009 after interrupting his flight training.

Lufthansa said it had handed additional documents, especially medical and training documents, to prosecutors in the western city of Duesseldorf after “further internal investigations”. Mr Lubitz is suspected of having deliberately piloted Germanwings flight 4U 9525 into a mountain killing all 150 people on board.

Australian employment lawyers have used the case to highlight the importance of employers addressing mental illness at work.

Under provisions in state workplace health and safety laws, the employer’s responsibility to protect the safety of others, could override any possible discriminatory claims an employee might consider, lawyers said.

“Employers have an obligation to provide employees with a safe working environment free from risk to health, so their obligation is to check for when mental illness arises … if that mental illness may effect the employer’s ability to provide an employee (or other employees) with a safe working environment,” said senior associate at McDonald Murholme, Andrew Jewell.

The basic principle is that unless a worker’s mental health is directly related to the requirements of their job, an employer should not be asking about it. And in most cases, mental health is not directly relevant to the employee’s job description.

An employer could inquire about mental health, or ask to have it assessed when mental illness was preventing an employee from performing their duties; it was the cause of their misconduct, or their job description required evidence of mental health, said Justine Turnbull, partner at Seyfarth Shaw, which specialises in workplace law.

“You can’t just check for mental illness,” said Ms Turnbull.

“If someone is not performing their duties, or there is concern about their conduct, an employer can ask them whether there is something that is causing that. If they disclose they have mental illness, an employer would then ask for certification from a medical practitioner to check they are fit to perform the role.”

Employers walk a fine line

If employees are asked about their mental illness when it does not relate to their job, and a disclosure then leads to them missing out on a promotion, or it threatens their job altogether, an employer could risk a fair work or discrimination case.

“You can’t make a decision about someone based on their physical or mental illness unless there is clearly objectively verifiable proof that they can’t perform their role,” said Ms Turnbull. “Sacking someone for short-term depression would see an employer subject to prosecution under anti-discrimination legislation.”

And the leaking of any information relating to a person’s mental illness would put an employer in breach of privacy laws.

Regular health checks and assessments become more critical when an employee has other people’s lives in their hands.

Public transport drivers, health practitioners and pilots are bound by health and safety regulations to ensure there are ongoing checks and follow up investigations when evidence of illness emerges, said partner at employment, discrimination and labour relations law firm, Justitia, Sarah Rey.

“The general approach would be that the employer would be regularly assessing the capabilities of staff and as soon as there is information that suggests someone is not fit for work, an employer would then refer that person for further assessment by a medical practitioner for an opinion on whether a person can still work.”

The employer could request multiple assessments to verify the person’s health, but if the employee is consistently shown to be fit for work.

Ms Rey said it was wise for employers to consider alterative options for employees with ill health.

“An employer might want to consider whether there are some adjustments to the job that would accommodate the person.”

Could the Germanwings crash have happened in Australia? 

Ron Bartsch, who is chairman of leading consulting firm to the aviation industry, Avlaw, said he believed the Germanwings crash “would have been handled differently in Australia” citing strict safety standards in the country.

Health and mental checks and assessments of pilots in the aviation industry were “very stringent”, with commercial pilots being testing by medical practitioners at least once a year, under requirements of the Civil aviation act 1988, he said.

The medical assessors were appointed by a chief medical examiner within the Civil Aviation Safety Authority (CASA) and the regulator had oversight over ensuring standards, which were mostly based on universal aviation standards.

Similar to most other cases, pilots only had to prove they were fit to perform their role as a pilot. So they didn’t need to disclose how much alcohol they drink regularly, but prove they had not consumed alcohol in the 12 hours before flying.

Mental illness was considered on a case by case basis. Mr Bartsch was aware of pilots who were depressed after a marriage breakdown, and referred for a further medical assessment, but deemed fit to work. Severe illness, found to have potential to cause harm to others, would not pass the test.

He said Australia had “prided itself” on a high level of safety due to an affective regulatory body in CASA, the body’s drug and alcohol management program, and that airlines go beyond the law to ensure pilots are fit when they are recruited by administering rigorous psychometric tests.

“The degree of psychometric testing of the airlines and the extent of the evaluation at the time of employment goes beyond the international standards and is not legally required.”

Top tips for managers

Workplace experts have three top tips for managing staff who appear to have a mental illness:

  • Be clear about a worker’s job description and with any questions about someone’s capacity to perform their role, or in assessing whether they are able to do their job.
  • Have employee assistance programs and health and wellbeing programs that promote a culture where employees can openly talk about mental health.
  • Senior executives revealing their own personal struggles with mental illness promotes transparency.

Reference: The Australian Financial Review, Germanwings crash underscores value of health checks: Employment Lawyers, 1st April 2015.