Are you an employer and you’re going to hire new people? In this case, you must not overlook the fact that, before starting work, any new employee must undergo a compulsory medical examination.
According to art. 27, para. (1) of Law no. 53/2003 – Labor Code republished, a person may only be employed based on a medical certificate, which finds that the person in question is fit to perform that work.
In this regard, the employer is obliged to ensure candidates/employees’ access to medical service of labor medicine, as required by art. 186 of the Labor Code.
Labor medicine doctor, according to art. 189, para. (1) lit. c) of the Labor Code, in conjunction with art. 8 lit. a) of Law no. 418/2004 on specific professional statute of the labor medicine doctor, provides medical examinations of employees both in employment and during the execution of the individual employment contract. Labor medicine doctor evaluates the ability to work in relation to health condition and promotes adapting the work to employees’ possibilities.
The individual labor contract concluded without a medical certificate, respectively without labor medicine doctor approval, entails the nullity of the labor contract.
According to Directive 89/391/EEC of 1989 art. 5, para. (1), in conjunction with art. 6, para. (1) of Safety and health at work Law no. 319/2006, and art. 175 para. (1) of the Labor Code, the employer shall ensure the safety and health of workers in every aspect related to work.
The employer is obliged, according to art. 7 of Government Decision no. 355/2007 regarding health surveillance of workers, to ensure the funds and the conditions to carry out all prophylactic health services necessary for health surveillance of employees.
By prophylactic health services, as provided by art. 8 from GD no. 355/2007, is understood:
- employment medical examination;
- medical examination of adaptation;
- periodic medical examination;
- medical examination to resume work;
- special supervision;
- to promote health at work.
Employment medical examination is performed for:
- workers to be employed on individual employment contract for a fixed period or indefinitely;
- workers who change jobs or are seconded to other jobs or other activities;
- workers who change their job or profession.
Employment medical examination is carried out at employer’s request, who must complete the following forms:
- sheet for requesting employment medical examination;
- sheet for identifying occupational risk factors.
According to GD no. 355/2007, the aptitude or inaptitude of a person is determined by the labor medicine doctor, based on the following criteria:
- compatibility/incompatibility of any disease present at the time of the examination and future employment;
- the existence/non-existence of conditions that endanger the health and safety of other workers in the same job;
- the existence/non-existence of conditions that endanger the security of the unit and/or quality of products manufactured or services rendered;
- the existence/absence of a risk to public health to which ensures services.
Depending on the outcome of the medical examination in employment, labor medicine doctor can make proposals for:
- adapting job position to the anatomical, physiological, psychological features and worker’s health condition (when employees change their job or are seconded to other jobs or other activities);
- guiding the person to be employed to other jobs;
- the inclusion in the information flow and operational health system for those persons requiring special medical supervision.
The result of the medical examination shall be recorded into a medical file.
Labor medicine doctor, based on the sheet for requesting employment medical examination, sheet for identifying occupational risk factors, medical file and medical examinations conducted, fills in the aptitude sheet with the conclusion of the employment medical examination: apt, apt conditioned, temporarily unfit or unfit for the job in question.
A person is considered apt from medical point of view whether it can perform the activity at work, in the profession/position for which the medical examination was requested.
Given that labor medicine doctor makes recommendations, therefore the aptitude is subject to compliance, and into the aptitude sheet, the medical opinion would be apt conditioned.
Is considered temporarily unfit a person who, due to illness, is unable to perform the activity to the working place in the profession/position for which labor medical examination is requested. Medical incapacity is determined by the labor medicine doctor until health reassessment, respectively until the disappearance of medical causes.
Permanent inability to work, represents the permanent medical incapacity of a person to perform the activity at the working place in the profession/position for which medical examination is requested regarding the ability to work. In this situation, the medical opinion of the labor medicine doctor will be unfit.
According to art. 27, para. (4) of the Labor Code, at employment, is prohibited to request pregnancy tests. In this regard, the medical certificate issued by the labor medicine doctor must not contain information on the state of pregnancy, as this can be an impediment in the hiring process.
The labor medicine doctor can ask the family doctor a certificate/medical letter stating the health of the prospective employee.
The aptitude sheet completing employment medical examination is filled only by the labor medicine doctor, in two copies, one for employer and one for employee.
Medical file and the sheet for identifying occupational risk factors are kept in labor medicine structure during the contract with the employer.
The right to appeal the result
Examined person has the right to appeal the result given by labor medicine specialist regarding the ability to work. The appeal shall be addressed to the county public health authority or of Bucharest, within 7 working days from receiving the work aptitude sheet.
According to Labor Code, art. 260, para. (1) lit. m), the employer may be sanctioned with a fine from RON 1,500 to RON 3,000 if they employ people without a prior medical examination and without labor medicine doctor approval on the person’s ability to perform the work.
Based on art. 13, lit. j) of Law no. 319/2006, the employer is required to hire only persons who, in the medical examination and, where appropriate, psychological testing skills, correspond to the task to be executed and to provide periodic medical examination and, by case, periodic psychological control, subsequent employment.
Failure to do so by the employer constitutes a contravention and is punishable under Law no. 319/2006 art. 39, para. (4), with a fine from RON 4,000 to RON 8,000.
The candidate/employee has the obligation, according to art. 39 from GD no. 355/2007, to submit to medical examinations of health surveillance in the workplace, as planned by the labor medicine doctor with the employer agreement.
Costs involved in the medical examination
Costs involved in the medical examination shall be borne entirely by the employer. In practice, there are situations in which employers send prospective employees to do their medical check at a labor medicine center and the medical examination fee being charged to the person who is to be employed.
Therefore, should be noted that, as provided by the applicable law, in accordance with art. 175, para. (4) of the Labor Code and art. 7, para. (6) of Law no. 319/2006, measures concerning health, safety and hygiene at work should not lead in any situation to financial obligations for employees, employers may be otherwise sanctioned with a fine from RON 3,500 to RON 7,000 (according the head. IX, art. 39, para. (5) of Law no. 319/2006).