Unfitness for Work: What to Do if the Occupational Physician Does Not Grant Fitness

It is possible that within a company, one or more employees encounter issues compromising their physical or mental fitness to perform their assigned duties. The law has addressed these situations in several interventions to protect both employers and employees.

Under certain conditions, permanent unfitness for work may constitute a justified reason for dismissal. However, in many cases, it is possible to reassign the unfit employee to another department within the company.

Here’s how unfitness is determined, its consequences, and what recent laws and court rulings say about dismissal due to unfitness for work.

Fitness for Work: The Professional Medical Examination

The occupational physician, under the new legislative framework, is legally obliged to conduct medical assessments. Failure to fulfill this obligation is subject to criminal penalties, including arrest or fines.

By law, the occupational physician must perform health surveillance, which primarily involves conducting medical examinations of employees. These can include:

• Pre-employment medical examinations.
• Periodic medical check-ups.
• Examinations upon the worker’s request.
• Medical examinations upon job reassignment.
• Examinations upon termination of employment or return to work after a leave of absence.

It should be noted that medical examinations cannot be conducted to determine pregnancy status.

A proper prevention program, including workplace hygiene and safety, can prevent the emergence of illnesses or conditions that compromise employees’ fitness. Employers must ensure compliance with all health and safety regulations, even in low-risk activities, which are often underestimated in workplace risk assessments.

Assessments for Fitness to Perform Specific Tasks

In cases of exposure to occupational risks defined by current regulations, the following assessments are required:

1. Pre-employment assessments to verify the absence of contraindications for the assigned role.
2. Periodic assessments to monitor employees’ health over time.

These assessments aim to evaluate an employee’s fitness for their specific job. The occupational physician may request additional clinical and biological tests or diagnostic investigations as needed. The costs for these assessments are borne by the employer.

When a worker is deemed fit for duty, the occupational physician issues a certificate of fitness.

Unfitness for Work: Consequences and Next Steps

If the occupational physician determines partial or total unfitness, either temporary or permanent, they must notify the employer and the employee in writing. In such cases:

1. The occupational physician must inform the employee of their right to appeal the decision within 30 days to the appropriate territorial supervisory authority, which may confirm, modify, or revoke the decision after further examinations.
2. The worker can seek assistance to initiate the appeal process if necessary.

Actions for Employers

• In cases of total unfitness (temporary or permanent):
  • The employer must remove the worker from the exposure to risks.
  • The employer must consider reassigning the employee to a position compatible with their health condition.
• In cases of partial unfitness:
  • The employer must ensure the worker avoids tasks or exposures specifically identified in the fitness judgment.
  • If possible, the worker should be reassigned within the company to roles aligned with their health condition.

Physical Fitness and Contract Termination

Fitness for Specific Duties

Physical fitness for a job cannot simply be measured against the employer’s expectation for maximum productivity. According to repeated rulings by the Supreme Court, fitness must consider the essential skills necessary for the contractual role, which do not always require complete physical integrity.

Termination of Employment

The employment contract is reciprocal, with pay provided in exchange for work. Permanent unfitness may justify contract termination, as long as:

1. The employer proves that reassignment within the company is not feasible.
2. The occupational physician provides clear and precise recommendations to avoid ambiguities in the fitness judgment.

Collaboration between the employer and the occupational physician is essential to ensure compliance with obligations and safeguard the worker’s rights to fair treatment while maintaining company operations.

By adhering to these guidelines, companies can balance the worker’s health and employment rights with the employer’s need to ensure the smooth functioning of the organization.