An employer cannot allow an employee to work without a current medical certificate stating the absence of contraindications to work in a specific position. Therefore, a medical opinion is one of the crucial documents that the employer should possess before allowing an employee to work.
However, there are situations that require employers to exercise special caution in this regard, such as the need to appeal a medical opinion or the necessity for additional (extraordinary) referral of an employee for preventive examinations.
Additionally, we would like to remind you that the deadline for completing overdue medical examinations is approaching, the validity of which has been extended based on the so-called COVID regulations.
During the state of epidemic threat or epidemic, the obligation to undergo regular employee health examinations was suspended, and the validity of medical certificates expiring after March 7, 2020, was extended for a period not exceeding 180 days from the date of the repeal of the last of these states. In May 2022, the epidemic state was lifted, and as of July 1, 2023, the state of epidemic threat in Poland was also lifted in connection with SARS-CoV-2 infections. This means that the deadline for completing these examinations is on December 28, 2023. Consequently, employers should promptly issue medical examination referrals to employees and continuously verify the progress of their completion.
Conditional Medical Opinion
One situation that raises serious doubts about medical examinations is obtaining a so-called conditional medical opinion. This happens when an employee receives a medical certificate that, on the one hand, states the absence of contraindications to work in a specific position and, on the other hand, restricts the way the employee performs the job. For example, this may include various additional provisions limiting the ability to work, such as a ban on lifting more than 5 kg or a prohibition on working in low temperatures. This means that the doctor, by determining the employee’s ability to work in a specific position and under certain conditions, simultaneously interferes with the employer’s right to organize work.
In such cases, the recommended solution is to prepare an appeal against the medical opinion within 7 days from the day of its receipt. The right to appeal is granted to both the employer and the examined person. The appeal should be submitted in writing through the doctor who issued it to the appropriate appellate body. Importantly, a medical opinion issued in the appellate procedure is final.
Employers should remember to carefully examine each received medical opinion to be able to meet the 7-day deadline for appealing if necessary.
Extra Referral for Medical Examinations
When an employee’s health condition undergoes sudden changes, employers may contemplate when, beyond the cases specified in regulations, they can additionally refer the employee for medical examinations. Although regulations do not explicitly provide answers in this regard, it is essential to consider that, according to Article 207 § 1 of the Labour Code, the employer is responsible for ensuring safety and hygiene in the workplace. Furthermore, the employer is obligated to respond to needs concerning safety and hygiene at work, adjusting measures taken for changing conditions of work execution. Therefore, when noticing that an employee’s health has deteriorated, causing complaints such as bodily discomfort, the employer generally has the right to direct the employee for preventive medical examinations. These examinations aim to determine whether the changing health condition of the employee allows them to safely perform work in a given position.
This extends to scenarios where there is no change in the employee’s health, but alterations are made to the working conditions. Legal precedents highlight that instructing an employee to undergo medical examinations should not be construed as harassment, especially when refusal might result in the employer being held accountable for allowing the employee to work without up-to-date periodic medical assessments.
It’s essential to bear in mind that matters concerning health are a delicate subject, necessitating employers to demonstrate an appropriate level of caution and sensitivity in this area.
Refusal to Undergo Medical Examinations
The fundamental obligation of every employee is to adhere to regulations and principles of occupational health and safety, including undergoing prescribed initial, periodic, and control medical examinations. It is essential to recognize that unwarranted refusal by an employee to undergo medical examinations may serve as grounds for terminating the employment contract without observing the notice period due to the employee’s fault. Such behaviour can be classified as failure to follow work-related instructions, resulting in the violation of basic employment duties.
However, not every situation necessitates seeking a medical certificate attesting to the ability to work. For instance, in the case of employees commencing annual leave following maternity leave (pursuant to Article 163 § 3 of the Labour Code) immediately after a period of incapacity to work lasting more than 30 days, employers should not require the submission of a medical certificate confirming fitness for work before granting them leave. This emphasizes the importance of individually assessing each situation involving a potential refusal by an employee.
In summary, the subject of directing employees for preventive medical examinations may raise concerns for both employees and employers. Nevertheless, it is crucial to bear in mind that the responsibility lies with the employer to organize work safely and in compliance with regulations. Failure to fulfill this obligation may result in fines imposed on the employer.
For any questions or uncertainties in this regard, we encourage you to contact our law firm.
Maria Aleksiejak, Trainee attorney-at-law (PL)