Is it possible to refer an employee to additional medical examinations in connection with suspected mental illness – an analysis of legal possibilities and jurisprudence of the Supreme Court

one of many issues which give rise to serious practical and legal doubts is the case of a worker whose employer suspects mental illness, particularly with regard to health and safety. These doubts have their origin, as in most cases of this type, in the absence of specific legislation.

However, due to the importance of this issue in practice, the Supreme Court has tried to resolve these doubts, whose case law over the last few years has shaped the views of practitioners on this issue.

Does Polish law therefore provide the employer with adequate tools to respond adequately to situations where a worker suspected of mental illness may pose a potential threat to occupational safety and health at work?

Introduction – legislation related to preventive healthcare

In a situation where the employer suspects that an employee may suffer from a mental illness which may potentially lead to hazardous situations in an establishment, e.g. as a result of violations of the health and safety rules, it will be important to determine whether he is actually ill and, if so, whether he will cause his incapacity to work. The basic instrument that an employer could potentially use in such a situation may be staff medical examinations.

Article 229 Work Code[1] (hereafter: (k) obliges the employer to provide preventive health care to workers. To this end, it foresees three the types of compulsory medical examinations to be carried out by workers – initial, periodic and control.

Their importance is demonstrated by the fact that they are one of the conditions determining the possibility of the worker being admitted to work, as stated in Article 229(4) The employer must not allow an employee to work without an up-to-date medical certificate stating that there are no contraindications to work in a specific position under the working conditions described in the referral to the medical examination.

It should be noted that it is also the duty of permanent workers to submit to these tests, which means that failure to submit to compulsory examinations commissioned by the employer may justify termination of employment with the employee at any time 2 .

It is worth noting that the issues discussed in this Article concern an employee who has already been employed and who is doing work, so it is not possible to refer him to preliminary examinations which had to be carried out before the worker was admitted to work. The authors will also not discuss in detail issues related to long-term sick leave, as then the situation will be simple – if the employee concerned was absent due to illness for longer than 30 days, this would make it necessary to carry out checks.

Rules for carrying out periodic examinations

Based on Article 229 k.e. laying down general rules for the conduct of medical examinations of workers, detailed questions relating to examinations are governed by implementing rules issued by the Minister for Health in agreement with the Minister for Labour – Regulation of the Minister of Health and Social Welfare from 30 May 1996 on the conduct of medical examinations of workers, the scope of preventive health care for workers and medical certificates issued for the purposes provided for in the Labour Code 3 (hereinafter: Regulation).

The Regulation lays down, inter alia, the procedure for the employer to direct the worker to preventive tests, the scope of tests and the rules for issuing medical certificates.

It also includes guidance for doctors to determine the frequency of tests (the date of validity of the decisions on employability), although the final decision on the duration of validity of the decisions on employability is always the responsibility of a physician who individually assesses the health of the worker and the risk factors to which the worker is exposed.

The Regulation also mentions additional studies, but on this basis, the employer issues a referral to preventive studies in connection with the employee's declaration of inability to perform the previous work.

This right is due to section 6 point 1 Regulations, but as it is easy to see, the issue of a referral is only admissible on this basis if the employee declares that he is unable to carry out his work.

Furthermore, such an application may concern:

• • the need to transfer a worker to another job because of a finding of harmful effects on the health of the worker (Article 55(1) k.p.),
• • signs of occupational disease (Article 230(1) k.p.),
• • inability to carry out previous work in an employee who has suffered an accident at work or has been found to have a occupational disease but is not included in any of the disabled groups.

This is therefore not the case in which the employer can decide on additional studies.

Since the lack of such a regulation caused serious practical problems, the Supreme Court has tried to resolve this issue 4 , in which the assessment: ‘Actual medical judgment within the meaning of Article 229(4) k.p. is the decision stating the health status of the worker on the date on which the worker is to be admitted to work.

It shall remain valid during the period mentioned therein, but shall become obsolete in the event of events occurring during that period which may indicate a change in the health of the worker.’

This finding in the judgment cited above was true for the specific facts decided by the SN in that judgment of the case where there was absence due to a disease longer than 30 days (so forcing checks), but it opened the way for a broader interpretation Article 229(4) k.p., which is now widely accepted among practitioners.

A new interpretation is based on the assumption that any event that may cause a change in the health of a worker to an extent that may affect the safety of the performance of the work by the worker (e.g. his/her psychophysical condition) may cause the medical certificate of the worker's ability to work to cease to be valid. This argument arises from the employer's obligation to ensure safe and hygienic working conditions for workers included in Article 207 k.p.

In the opinion of the supporters of this interpretation, the obligation to ensure safe and hygienic working conditions makes it necessary to remove from work an employee whose health may prevent the performance of work in a safe and hygienic manner – this is a situation of increasing the likelihood of an accident at work due to poor mental performance due to the health of the worker. A staff member dismissed from work in such a situation should receive a referral for periodic examinations and a service instruction for these examinations.

It must be stressed that, until now, this interpretation has not found clear confirmation in the case law, which may result in legal risk to the employer. However, in the newer case law of the SN it is possible to see some support for this interpretation, which will be discussed further.

Potential legal risks to the employer due to the interpretation of the possibility to conduct preventive tests when suspected changes in the health of the worker

Application of interpretation Article 229(2) k.p., which means that a worker may be referred to periodic examinations in advance, if there is a reasonable suspicion of a change in the health of the worker, gives rise to legal risks for the employer, as indicated above, because no provision of the law commonly applicable does directly give the employer the right to issue such a referral.

Therefore, they occur here two types of legal risks to the employer – the allegation of harassment (so-called non-sexual, also referred to as harassment -- undesirable behavior whose purpose or effect is to violate the dignity of the employee and create a intimidating, hostile, degrading, humiliating or derogatory atmosphere towards him) from Article 183a(5)(2) KP or quit mobbing with Article 943 k.p., if the study referral is to be part of the persistent and prolonged harassment of the employee.

In order to minimise the risk associated with the application of this interpretation, it will be important to demonstrate the intention of the employer.

The case law of the NS in this respect assumes that the performance of preventive tests is generally in the interests of the worker, given the risks associated with the performance of work by an employee whose health may not permit the safe performance of work.

However, the employer will have to prove that the targets of the survey were not related to harassment of the employee.

The Supreme Court stated in the ruling 5 , that ‘The worker's refusal to submit to a medical examination required by law cannot be treated as harassment by his employer and seeking an excuse to release him, especially when the refusal to submit to a medical examination is irrational, compromises his personal interest, and the employer exposes him to the responsibility of being admitted to work in a position which exposes to harmful substances to health, without ongoing medical examinations’.

In the facts of the case, the medical examiner mistakenly issued a decision to allow work for the period 5 years, and its intention was to give such a ruling for a period of 1 the year she informed the employee.

In this context, the employer directed the employee for additional studies, despite the fact that the employee had a current decision on the ability to work. The employee refused to undergo additional examinations, to which the employer responded to the termination of the employment relationship without notice (Article 52 (p.).

The courts of both instances considered this employee behaviour to be a serious violation of basic labour obligations, which the SN did not contest.

In a judgment in a similar case[6] The Supreme Court found, in its ruling against the applicant’s employees, that ‘[...] it follows from the findings made that the behaviour of the defendant’s employees did not bear any mobbing characteristics within the meaning of Article 943(2) K.P., but aimed at providing assistance and improving the plaintiff’s health, while the applicant’s subjection to a medical examination on [...] confirmed the existence of psychotic disorders causing continued incapacity to work as part of the sickness allowance until [...]’. However, in this case, the Supreme Court did not directly assess the legality of the referral for additional medical examinations, as requested by the employee, but this passage may suggest that the SN does not consider such referral to be illegal.

In the opinion of the authors, the cited case law and the general principle of the protection of health and safety at work by the employer of Article 207 k.p. suggests that sending an employee to additional medical examinations due to suspected signs of mental illness will not be illegal. However, the condition for such a referral must be the existence of behaviour which will actually justify such a need, particularly where such behaviour may endanger the health or life of the worker or other persons.

An employer in such a situation must be prepared for such a referral to be regarded as harassment, even if the employer's aim is to help the worker effectively and to ensure the safety of work. The recommended step in this situation will be to try to convince a worker to undergo research (e.g. psychiatric) without giving instructions.

It should also be borne in mind that the decision to carry out potential psychiatric examinations as part of the procedure to refer the worker to preventive examinations will belong to the occupational medicine doctor and it is not possible to refer the worker to specialist examinations directly by the employer.

Summary

On the basis of the above considerations, the following conclusions can be drawn:

• • the employer's right to direct employees for additional preventive tests occurs but is not directly attributable to the law. However, the case law suggests that this will not be an illegal act;
• • the legal basis for the worker's referral to preventive testing in such a situation will be Article 229(2) ed. Article 207 k.p.;
• • referral to additional preventive studies may pose legal risks associated with the potential recognition of such referral for harassment or harassment of an employee;
• • in the event of a dispute, it will be important for the employer to demonstrate that his intention was not to harass the worker, but to help and ensure the safety of work.

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1 Act of 26 June 1974 – The Labour Code, i.e. Journal of Laws of 2018, item 917. 2 Cf. judgment of the Supreme Court of 2 March 2011, reference no. II PK 188/10, Legalis No 362201. 3 Journal of Laws of 2016, item 2067. 4 Judgment of 18 December 2002, reference no. I PK 44/02, Legalis No 56104. 5 Judgment of the Supreme Court of 27 January 2004, reference no. I PK 293/03), Legalis No 65680. 6 Judgment of 16 January 2014, reference no. I PK 207/13, Legalis No 1169165.