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When an employee is able to work, but…

One of an employer’s basic obligations as regards health and safety at work is not allowing employees to work without a valid medical certificate. This must state that there are no contraindications preventing a given employee from working in a specific position under the conditions described in the medical examination referral (Article 229 § 4 of the Labour Code).

However, it often happens that employees provide medical certificates that confirm their ability to work in a given position, while at the same time specifying a number of contraindications related to the work (such as inability to work at height, lift loads exceeding a certain weight, do a night shift). Such a list often turns out to be a big obstacle for the employer, as these contraindications relate to working conditions described in the medical referral, which often constitute the essence of the type of work and its organisation. It is often not possible to eliminate these, or it would involve excessive costs (such as the need to take on additional employees). It will not be a problem to comply with an order to work in protective eyewear in relation to an employee working in front of a computer. However, organising work so that a given employee does not have to work nights, where a three-shift system is in operation, may be quite a challenge. So, what options do employers have?

Firstly, such a certificate cannot be used as a basis for allowing an employee to work if it is not possible to adapt the job position. An employer is therefore put in a situation where a doctor’s certificate formally allows an employee to work, but in practice this may expose the employee to loss of health – and the employer to liability.

Secondly, it should be stressed that a medical certificate of this kind is not correct. The occupational health doctor is obliged to comply with the provisions of the regulation on the conduct of medical examinations of employees[1]. According to these, the prophylactic examinations result in a medical certificate stating that under the working conditions described in the medical examinations referral either there are no contraindications to work in a particular position, or there are contraindications to work in a particular position.

In addition, the doctor conducting the prophylactic examination may issue a medical certificate stating that because of:

  • harmful effects of the work on health,
  • the risk posed by the work to the health of a minor,
  • suspected occupational disease,
  • inability to carry out a previous job due to an accident at work or occupational disease,

the employee has become incapable of doing their job. And the doctor may state that due to the above-mentioned circumstances, it is necessary to transfer the employee to another position for a given period of time.

On receiving an ambiguous medical certificate, the employer should apply for a new medical examination, which will be carried out by the competent provincial occupational health centre. The medical certificate issued on the basis of the re-examination will be final. The application should be properly formulated, showing that the contraindications identified by the doctor actually prevent the employee from being admitted to work.

Finally, having an unequivocal decision stating the lack of ability to work in a given position, the employer may decide to terminate the employment contract. This will be necessary if the employer is unable to adapt the job to existing health contraindications, or does not have another vacancy corresponding to the state of the employee’s health. An employer is not obliged to create a new position for an employee, but sometimes it will be obligatory to verify whether it is possible to transfer them to another available position. This all depends on the wording of the final medical certificate.

Termination of an employment contract may ultimately end up in court, which is why it is necessary to review medical certificates properly, including ensuring a consistent approach towards all employees to avoid the accusation of unequal treatment.

The situation will be somewhat different for employees with an established degree of disability. In such a case, the employer is obliged to provide the necessary rational improvements (i.e. changes or adaptation to the specific needs resulting from a person’s disability), provided that they do not represent a disproportionate burden. Failure to provide the necessary reasonable improvements is considered a breach of the principle of equal treatment in employment. Therefore, each case needs to be individually examined and assessed.

Izabela Dziubak-Napiórkowska

[1]Regulation of the Minister of Health and Social Welfare on the conduct of medical examinations of employees, the scope of preventative health care for employees and medical certificates issued for the purposes specified in the Labour Code of 30 May 1996. (Journal of Laws No. 69, item 332), i.e. of 4 November 2016. (OJ of 2016, No. 69, item 332), i.e. of 4 November 2016).