Can the employer refer the employee for psychiatric examinations?

The employee’s mental health is also particularly important in his working life. It affects the quality of the work and the commitment, and thus the employee’s assessment and professional success. It also refers to the relationships that an employee establishes with a team. The Labour Code provides for specific health obligations for the employer, but not to distinguish mental health separately, but to treat health in general. First of all, they are obliged to ensure safe and hygienic working conditions with proper use of scientific and technical achievements, as set out in Article 207(2) of the Code of Procedure.

This obligation largely concerns the protection of physical health, as confirmed by the case-law, which primarily deals with cases of somatic diseases which arise due to a failure to provide health and safety rules. It is also the employer’s health care responsibility to direct employees to medical examinations, which depend on the stage of employment. The employer therefore directs workers to preliminary examinations if they are admitted to work, as well as juvenile workers transferred to other jobs and other workers transferred to workplaces where there are adverse health-damaging or burdensome conditions.

The employee is also obliged to carry out periodic examinations. The frequency of periodic examinations depends on the state of health of the worker and the type of work performed. In the event of an incapacity for work of more than 30 days due to illness, the worker shall be subject to a medical check-up to determine his ability to work in his current post. It is the employer’s responsibility to admit the employee to work only if he/she has an up-to-date medical examination. This is confirmed by Article 229(4) of the Code of Conduct, according to which the employer may not allow an employee to work without an up-to-date medical certificate stating that there are no contraindications to working in a particular position under the working conditions described in the referral for medical examinations. But what if a work worker has an up-to-date medical examination but his mental health changes?

It is increasingly common for workers to develop mental illness or psychological disorders. Statistics and research clearly show that the mental well-being of workers worldwide is currently in deficit. Even more so, the sphere of mental life of employees becomes of interest to researchers, in connection with the pandemic COVID-19. Workers in a changing situation on the labour market feel insecure, and the mere fact of dynamically changing reality, isolation and the risk of infection are extremely burdensome for employees. Workers are affected by disorders that arise as a result of work itself, e.g. burnout, but also develop diseases independent of their working life, such as depression or schizophrenia.

If an employee’s behavior changes and may suggest the appearance of a mental illness, it begs the question of whether it can be referred for additional medical examinations if the required examination regulations are up to date. No provision expressly allows an employee to be referred for additional medical examinations. However, the Supreme Court’s decision of 18 December 2002 on the Act I PK 44/02, in which the General Court stated that 'a current medical certificate within the meaning of Article 229(4) of the Code of Procedure is a judgment establishing the state of health of the worker on the date on which he is to be admitted to work. It shall remain valid during the period referred to there above, but shall become obsolete in the event of events occurring during that period which may indicate a change in the worker’s state of health.” Although the facts of that judgment did not relate to the onset of symptoms of mental illness, a broad interpretation of that thesis is accepted.

Following this line of thinking, an employee who manifests symptoms of a mental disorder or illness can be referred for additional medical examinations. Furthermore, that obligation to ensure safe and hygienic working conditions for workers also supports this, which applies to the worker himself, who develops symptoms of mental illness, as well as the team as a whole. When referring an employee to additional medical examinations, there are a few important aspects that determine the legitimacy of the referral itself.

First of all, such a person should be approached with a great deal of empathy and understanding. A worker should not be disqualified simply because his or her health has deteriorated. Often, changing behavior is independent of the employee himself and does not mean a lack of commitment to work or bad intentions. Therefore, it is necessary first of all to approach the topic with great delicacy and talk to the employee. Perhaps for the employee such a view of the situation by the employer will be a great support and he will decide to take treatment himself.

Moreover, the employee’s referral for an additional medical examination must be justified and supported by hard grounds, it cannot depend solely on the subjective assessment of the employer. Examples of behaviour that may disturb the employer and provide a basis for referral to additional medical examinations must be specific events, e.g. panic attacks, anxiety or aggression in the workplace, non-standard behaviour deviating from the previous one, exposure of another person working in the same organisation to danger. These are, in particular, behaviours which, by repeatedly, may result in a breach of the safety of persons in the care of the patient, or may cause significant harm. Especially in professions requiring direct contact with other people, such as a teacher, nurse or caregiver, these symptoms can be particularly worrying for the environment. However, it appears that a deterioration in mood, if it does not affect the quality of work or pose a risk to others, is not a prerequisite for referring the worker to an additional medical examination.

The need to demonstrate legitimate reasons for referral to research is not only due to the fear of unfair treatment of the employee and the desire to protect him in a difficult situation, but also to the risks that may be in the hands of the employer in the event of an unfair suspicion of the disease. Suggesting mental illness or unjustified referral to psychiatric research is on the list of 45 bullying criteria according to Leymanna, one of sweden’s first researchers of harassment at work. Unjustified targeting of an employee for additional medical examinations can not only be particularly severe for the employee, but can also be a manifestation of harassment or discrimination in the form of harassment, which may result in a violation of the dignity of the employee. Therefore, the employer must direct his behaviour regarding a worker with a suspected mental illness in order not to run the risk of being accused of harassing the employee.

Source: https://kadry.infor.pl/bhp/badania-lekarskie/4692114,Czy-pracodawca-moze-skierowac-pracownika-na-badania-psychiatryczne.html

Region Gdański NSZZ „Solidarność”

Projekt otrzymał dofinansowanie z Norwegii poprzez Fundusze Norweskie 2014-2021, w ramach programu „Dialog społeczny – godna praca”.

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