Occupational Medicine Assessments During an Epidemic
According to Article 229 of the Labour Code, every person hired for work or employed under an employment contract is subject to preventive medical examinations: initial, periodic, and control examinations.
Furthermore, § 4 of this article states that an employer may not allow an employee to work without a valid medical certificate confirming the absence of contraindications to work in a specific position under the working conditions described in the referral for medical examinations. The lack of current occupational medicine assessments risks the imposition of a penalty by the National Labour Inspectorate.
To avoid committing an offense by allowing an employee to work without valid medical examinations, some employers have opted for alternative forms of employment, thereby changing the employment contract to a civil law contract (e.g., a mandate or a contract for specific work). The rest hoped to avoid potential consequences by relying on the position of the Chief Labour Inspector, according to which inspections by the National Labour Inspectorate were to be conducted only in cases of direct threat to the life or health of employees and in the event of the need to determine the causes and circumstances of workplace accidents.
Moreover, representatives of many member states, despite supporting the concept of flexibility of supervisory authorities included in the project during previous presidencies, expressed concerns regarding the anticipated regulation of cooperation between various involved authorities (especially data protection authorities and national regulatory bodies) and the role that the European Data Protection Board is to play in the implementation of the regulation. In response to this, the Finnish presidency proposed imposing an obligation on the EDPB to consult with the relevant national authorities (not being data protection authorities) before carrying out its tasks under ePrivacy.
In light of the difficulties in conducting occupational medicine assessments, this issue was addressed in the Act of March 31, 2020, amending the Act on special solutions related to preventing, counteracting, and combating COVID-19, other infectious diseases, and the crisis situations caused by them, and certain other acts. According to Article 1, point 11 of this Act, in the event of declaring a state of epidemic threat or a state of epidemic, from the date of declaration of the given state, the obligations arising from the Labour Code are suspended:
- art. 229 § 2 sentence one:
§ 2. The employee is subject to periodic medical examinations. In the case of incapacity for work lasting longer than 30 days due to illness, the employee is also subject to control medical examinations to determine their ability to perform work in their current position. - art. 229 § 4a regarding periodic examinations:
§ 4. The employer may not allow an employee to work without a current medical certificate stating that there are no contraindications to work in a specified position under the working conditions described in the referral for medical examinations. - art. 229 § 5:
§ 5. An employer employing employees in conditions of exposure to carcinogenic substances and factors or fibrogenic dusts is obliged to provide these employees with periodic medical examinations also:
1) after ceasing work in contact with these substances, factors, or dusts;
2) after termination of employment, if the person concerned submits a request to be covered by such examinations.
What about examinations after the end of the epidemic?
After the declaration of the end of the epidemic, the employer and the employee are obliged to promptly resume the suspended duties related to occupational health examinations mentioned above. These examinations must be conducted within a period not exceeding 60 days from the date of the declaration of the end of the epidemic.
Furthermore, the legislator indicates that in a situation where a doctor authorized to conduct the initial or control examination is unavailable, such an examination may be conducted and an appropriate medical certificate issued by another doctor. The medical certificate issued by another doctor loses its validity after 30 days from the date of the declaration of the end of the epidemic. This doctor may conduct the examination and issue the medical certificate in the manner specified in art. 2 sec. 4 of the Act of December 5, 1996 on the practice of the medical profession and dental profession.
Does an exceptional situation exempt from the obligation to comply with the GDPR in the employment process?
The current state of epidemic introduced in our country exempts entrepreneurs from some obligations, but not all – the GDPR and the Personal Data Protection Act still apply and are fully binding on data controllers.
The best evidence that the protection of personal data should not be suspended during the pandemic is the fact that the President of the Polish Data Protection Authority imposed a fine of PLN 20,000 on Vis Consulting Sp. z o.o. in liquidation, based in Katowice (a company related to the telemarketing industry) for obstructing an inspection. The information about the decision of the President of the Polish DPA was published on April 2 on the official website of the Authority.
To avoid exposing your organization to additional sanctions during this already difficult time for everyone, while simultaneously minimizing the risk of contracting the coronavirus, it is necessary to:
- immediately grant newly hired employees authorization to process personal data (this can be granted electronically, which has significant practical implications in the current situation),
- not to abandon training on personal data protection – especially when hiring new employees who, in the course of their duties, will have contact with personal data,
- whenever possible, exchange documents containing personal data in electronic form,
while ensuring their appropriate security (e.g., through encryption), - if possible, due to the nature of the work, enable employees to work remotely, ensuring information security,
- carry out additional activities aimed at increasing the level of security in the workplace with moderation, within reasonable limits and in accordance with applicable regulations
(temperature checks of employees, health status interviews, etc.).
Is it permissible to measure an employee's temperature?
Summary
Although at this moment few of us may see a real chance for a quick return to normal functioning, it is worth fulfilling our obligations with the end of this difficult period for everyone in mind and adhering to the applicable regulations. Let us remember that the provisions of the GDPR are there to protect our privacy, and with relatively little effort and the use of electronic tools, we are able to maintain a satisfactory level of personal data protection.
