Overview

Health workers regularly experience temporary or ongoing medical conditions that are not caused by work—such as surgeries, chronic illnesses, pregnancy-related conditions, injuries outside work, mental health issues, infections, and disabilities.

Even when an illness or injury is not work-related, employers still have legal obligations under the Anti-Discrimination Act 1977 (NSW). Under Part 4A – Disability Discrimination, employers must not treat workers unfairly because of a disability, must consider reasonable adjustments, and must not make assumptions about a worker’s capacity.

This article outlines:

• What counts as a “disability”
• What employers can and cannot do
• Required reasonable adjustments
• When an employer can rely on “inherent requirements” and unjustifiable hardship
• When to escalate to the Member Services Division (MSD)

1. Illness and Injury as “Disability” Under the Act

Under section 49A, “disability” is defined very broadly and includes:

• A condition the worker currently has
• A condition the worker is suspected of having
• A past injury or illness
• A condition the worker is assumed to have had
• A condition the worker may develop in the future

This means that almost any non-work-related medical condition can be a protected disability under the Act.

Examples for health workers include:

• Broken bones or sporting injuries
• Recovery from surgery
• Long-term medical conditions (for example, diabetes, epilepsy, heart conditions)
• Pregnancy or post-partum conditions
• Temporary infections
• Mental health conditions
• Mobility issues requiring aids or equipment

Employers are prohibited from taking adverse action against a worker because of any of these conditions.

2. What Counts as Disability Discrimination (Section 49B)

A. Direct Discrimination

Direct discrimination occurs when an employer treats a worker less favourably because of their illness or injury, or because of the disability of a relative or associate.

Examples:

• Cutting a worker’s hours because they disclosed a medical condition
• Removing someone from the roster due to assumptions about their injury
• Discouraging a worker from returning even when they are medically cleared
• Treating a worker differently because they use mobility aids or medical equipment

B. Indirect Discrimination

Indirect discrimination occurs when an employer imposes a requirement or condition that:

• Workers without the disability can comply with more easily, and
• Is not reasonable in the circumstances, and
• The worker with the disability cannot comply with.

Examples in health workplaces:

• Requiring 12-hour shifts when a worker’s condition limits them to 8-hour shifts
• Mandating that all training be attended in person where reasonable alternatives exist
• Requiring full manual handling duties without considering modifications

If a requirement is not reasonable, it may be unlawful indirect discrimination.

3. Employers Must Consider Reasonable Adjustments

Before making any negative decision about a worker with a non-work-related injury or illness, an employer must consider reasonable adjustments.

Examples of reasonable adjustments in health workplaces include:

• Modified or alternative duties
• Reduced manual handling or lifting
• Short-term adjustments to shift length or pattern
• Temporarily reallocating high-risk or physically demanding tasks
• Allowing additional rest breaks
• Providing assistive devices (for example, chairs, supportive footwear, ergonomic tools)
• Temporary non-clinical or administrative duties while recovering
• Adjusted rosters or duties based on medical advice

Failure to properly consider reasonable adjustments may amount to a breach of the Anti-Discrimination Act.

4. The “Inherent Requirements” Test and Unjustifiable Hardship (Section 49D(4))

An employer can refuse to provide work or can modify employment only if:

• The worker cannot perform the inherent requirements of the role because of their disability, and
• Providing the adjustments needed would cause the employer unjustifiable hardship.

This is a strict test. Large health employers will usually find it difficult to show that reasonable adjustments cause unjustifiable hardship.

What are “inherent requirements”?

Inherent requirements are the essential, core tasks of the job, not every single duty that might be performed.

Examples:

• An allied health professional must be able to provide safe clinical care within their scope
• A disability support worker must be able to provide basic support to clients
• A cleaner must be able to perform core cleaning tasks to an acceptable standard

Non-essential tasks can often be modified, shared with others or removed temporarily as part of a reasonable adjustment.

What is “unjustifiable hardship”?

Unjustifiable hardship means that providing the required adjustment would be excessively difficult or costly when all the circumstances are taken into account. In assessing unjustifiable hardship, relevant factors include:

• The benefit or detriment likely to be experienced by the worker and others,
• The impact of the worker’s disability, and
• The employer’s financial circumstances and the likely cost of the adjustment.

The threshold is high. Many adjustments in health workplaces (for example, temporary modified duties or roster changes) will not amount to unjustifiable hardship.

What employers cannot do

• Assume a worker cannot perform duties without proper assessment
• Refuse work simply because the worker has restrictions or a medical history
• Declare someone “unfit” without considering reasonable adjustments
• Force someone to resign due to a temporary incapacity where adjustments are possible

Employers must rely on evidence and consultation, not assumptions.

5. Medical Evidence and Consultation

Employers may request medical information to understand a worker’s functional capacity, but should not seek unnecessary details about diagnosis.

Appropriate questions for medical certificates or reports include:

• What duties can the worker safely perform?
• What duties should the worker avoid?
• What adjustments or restrictions are recommended?
• How long are restrictions likely to be needed?

Workers should not be pressured to disclose private medical details beyond what is needed to assess fitness for work and reasonable adjustments.

Employers must genuinely engage with the worker, consider medical advice and explore adjustments before changing employment conditions.

6. When Negative Action May Be Unlawful

Negative action may amount to unlawful disability discrimination if an employer:

• Reduces hours because of a non-work-related injury or illness
• Removes a worker from the roster without considering adjustments
• Denies modified duties despite clear medical evidence
• Pressures a worker to take unpaid leave or resign
• Ignores medical certificates or restrictions
• Penalises a worker for disability-related absences
• Blocks or delays a return to work after medical clearance
• Excludes a worker from training or progression opportunities because of their condition

These situations should be treated seriously and may require escalation.

7. When to Escalate to the Member Services Division (MSD)

Refer a member to the Member Services Division if they report:

• Reduced hours or removal from the roster due to a non-work-related injury or illness
• Being refused reasonable adjustments or modified duties
• Pressure to take unpaid leave or resign
• Unfair performance management linked to their condition
• Unreasonable “fitness for work” processes or demands for excessive medical detail
• Exclusion from training, promotion or development opportunities

MSD can assist with advice, internal advocacy, escalation to HR, discrimination complaints and referrals to Industrial Officers where appropriate.

8. Key Takeaways for Health Workers

• Non-work-related illness or injury can be a protected disability under the Anti-Discrimination Act 1977 (NSW).
• Employers must not treat workers less favourably because of a medical condition.
• Reasonable adjustments must be considered before any negative employment decision is made.
• An employer can only rely on “inherent requirements” and “unjustifiable hardship” after properly assessing capacity and adjustments.
• Most adverse actions taken without proper assessment and consultation may amount to unlawful disability discrimination.

Members who are unsure of their rights or feel they have been treated unfairly should be encouraged to contact the Member Services Division for advice and support.