Can the employer refer the employee to previous preventive examinations?
The date of the next preventive examination, as part of employee examinations, is set by the doctor who carries out the examination. In special cases, the employer has the right to refer the employee for prior preventive examinations, before the date specified by the doctor. However, this can happen provided that there are objective reasons for it.
Watching over the health of employees is one of the duties of every employer. Of course, this is not about permanent surveillance in health matters. All the more so because information about the state of health is classified as personal data of a special category – sensitive data. Thus, they are subject to special protection. However, this does not mean that health issues are the sole concern of job applicants and employees.
Provisions on technical safety at work, as part of their obligations regarding preventive health protection of employees, oblige employers to provide employees with preliminary, periodic and control examinations.
During the COVID-19 epidemic, some of the rules on occupational preventive examinations were changed. Obligations related to sending employees to periodic examinations have been suspended. Obligations related to preliminary and follow-up examinations remained unchanged. However, here too, the covid regulations provide for certain amenities in the event of the unavailability of the examining doctor.
The scope and frequency of preventive examinations of employees are determined by methodological guidelines. These guidelines are an appendix to the ordinance on medical examination of workers (…). They indicate the dates of preventive examinations within strict time frames, and the doctor conducting the examinations cannot extend them. However, there is a basis for accelerating the preventive examination, which follows from the methodological guidelines. This is the basis for the physician’s statement that it is necessary for the proper assessment of the health condition of the employee.
In practice, there are often doubts as to whether only the doctor who conducts the tests can shorten the time of the next preventive examinations. It turns out that not only a doctor can send an employee for preventive examinations before the deadline. It is the employer’s duty to protect the health and life of employees. It is under this obligation that the employer has the right to refer the employee to prior preventive examinations. This situation may occur when:
- the employee informs the employer about any health problems that may affect his ability to perform his duties.
- doubts as to the state of health result from the ongoing observation of the work process.
However, there is a problem with the justification of such a referral of an employee to previous preventive examinations by the employer. The regulations do not directly provide such competences to the employer. Especially if the employee is not interested in having his health checked before the date set by the doctor as part of the previous examination.
It is known that the prior preventive examination will be carried out on the basis of a referral issued by the employer. However, in the form of referral for preventive medical examinations, there is no place to justify referral of an employee for accelerated examinations. In order to avoid misunderstandings, the employer should contact the doctor who provides preventive health care for the employees. It is best if he does it by phone. The telephone form is the safest. In this way, no trace of the processing of data on the employee’s health remains. Remember that the provisions do not regulate the form of contact with a doctor as part of accelerated preventive examinations. During such an interview, the employer should inform the doctor who provides preventive health care for employees about what, in his opinion, is disturbing, which may suggest the need to accelerate preventive medical examinations.
Of course, the employer may draw up a letter to which he will attach a referral for preventive examinations. However, in order to justify in such a letter the need for pre-term testing, it is necessary to refer to the employee’s health issues. This, in turn, may raise doubts as to the processing of personal data, including data of a special category, such as data on health.
The assessment by the National Labour Inspectorate of sending an employee for tests before the deadline by the employer may vary. If the employer justifies his decision in writing, thus processing data on the employee’s health, this may be questioned by the labour inspector. The inspector may decide that such a procedure has no direct basis in the applicable provisions. Of course, the same inspector will certainly approach the matter differently if the employer ignored the state of health of the employee. For example, if the employer did not refer the employee for a preventive examination, and the employee had a serious or fatal accident at work.
Projekt otrzymał dofinansowanie z Norwegii poprzez Fundusze Norweskie 2014-2021, w ramach programu „Dialog społeczny – godna praca”.
