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Routine medical examinations of employees during an epidemic – a suspended obligation or an outright ban?

The temporary regulations that were introduced in connection with the COVID-19 epidemic have temporarily amended certain labour law regulations. One of them concerns a suspension of Labour Code obligations regarding routine medical examinations. This has raised justified doubts among employers who are wondering whether the regulations have merely suspended the performance of the routine medical examination obligations, or if they should be interpreted as a temporary ban on performing them.

The resolution of this issue is of particular importance to employers with large numbers of employees, for whom failure to carry out routine examinations during the epidemic will lead to a need to send dozens or even hundreds of employees for such examinations in a short time at a later date. This could cause problems both for the employers (the regulations require that the preventive examinations should, if possible, take place during working hours, while allowing an employee to work without a current medical certificate showing no contraindications to work in the given position is an offence that is punishable by a fine of PLN 1,000 to PLN 30,000) as well as for the medical centres – it may prove significantly more difficult to carry out a large number of examinations in a short period of time. In extreme cases, employers could be forced to seek additional medical facilities to which they could refer their employees for examination. It appears that, precisely in view of the practical problems of carrying out examinations after the end of the state of epidemic or epidemiological threat, the period following their revocation in which the employer and employee will be obliged to fulfil the obligations that were suspended in this respect has been extended from 60 to 180 days. In view of not knowing how long the above exigencies may last, doubts may arise as to whether even the given period will suffice.

Conflicting interpretations

A perusal of the justification of the act that introduced the provisions in question does not dispel those doubts. As a result, a number of initiatives have been undertaken to obtain interpretations of the provisions from various authorities. Thus, in response to a parliamentary question of 16 October 2020, the Ministry of Family and Social Policy stated that “the employer may still refer an employee to such [routine] examinations. This is because the Labour Code sets minimum requirements, so that the level of protection afforded to an employee may be increased at any time. Also, an employee may request that the employer refers the employee to such examinations”. Then again, the Chief Labour Inspectorate, in an unpublished letter ref. GIP-GBI.0701.36.2021.3 of 30 April 2021, stated that due to the suspension of the obligation to carry out routine examinations, the employer should not refer an employee for such medical examinations, and the employee is not obliged to take them. Interestingly, different guidance may be obtained by calling the State Labour Inspectorate’s helpline.

What do the provisions themselves say?

In accordance with the provision that regulates this issue, namely Article 12a par. 1 pt. 1 of the “Anti-Crisis Shield” (Act of 2 March 2020 on Specific Solutions Related to Preventing, Counteracting and Combating COVID-19, other Infectious Diseases and the Crisis Situations They Cause), “performance is suspended of obligations under the regulations (…)” concerning routine medical examinations. A literal interpretation of this regulation leads to the conclusion that the provision only suspends the obligation, but does not prohibit the referral to and performance of routine examinations. Therefore, one should assume that it is permissible to refer employees for routine examinations even during a state of epidemic or of its threat, especially if the employer, the employee and the medical facility all declare it such examinations as possible. There are no clear grounds for imposing any sanctions on an employer for taking such a step, in particular it is difficult to imagine how such an act could qualify as an offence in terms of failing to comply with health and safety regulations.

Separate from the issue of the admissibility of routine examinations, is the issue of their possible enforcement by the employer. Interestingly, the wording of Article 211 pt. 6 of the Labour Code remains unchanged, under which an employee is particularly obliged to “submit to preliminary, periodical and control and other prescribed medical examinations”. It is difficult to determine whether this was a deliberate act or rather an oversight on the part of the legislature. However, taking into account the specific circumstances and the ambiguity of the provisions in question, it would rather be going too far to conclude that there is an absolute obligation on the part of employees to undergo medical examinations. Employers should therefore be very cautious about drawing possible consequences against employees who refuse to carry out periodic examinations during the suspension of the statutory obligations relating to them.

In practice, doubts have also arisen as to whether there has also been a suspension of the  employer’s obligation to issue referrals for routine examinations. Fearing a fine, some employers have been issuing such referrals without any intention of actually referring their employees for examination. It appears, however, that this is unnecessary, because there is no separate provision obliging employers to issue referrals, and the provision stating that “preliminary, periodical and control medical examinations are carried out based on a referral issued by the employer” has been suspended in the extent of routine examinations. Therefore, there are no grounds for penalising employers that fail to issue referrals in this respect.

Leaving aside the purely legal analysis of the provisions, one cannot fail to notice that the purpose of suspending the obligation to undertake routine medical examinations (i.e. to minimise the risks of infection for employees who are referred for examinations and for those who work in the medical institutions carrying them out) may be, especially in view of the increasing percentage of vaccinated people, disproportionate to any possible negative consequences associated with the suspension of this obligation. Indeed, the timing of routine medical examinations is not random, but aims to achieve the earliest possible detection and diagnosis of the onset of any occupational diseases or other conditions. This is particularly important in the case of workers who are exposed to certain harmful substances and agents. It would be irrational to interpret the considered provisions in such a way as to deprive them of the possibility of undertaking such examinations.

Piotr Podsiadły