From 1 September, the general obligation to take a fitness-for-work test has been abolished and no longer applies to all jobs and all employees, but only to those jobs defined in the relevant ministerial decrees. The official justification for the change is to reduce the administrative burden on employers.
At the time of writing, the list of jobs for which health examinations will remain compulsory has not yet been published. There is a draft decree of the Minister of the Interior which does not define specific jobs but rather risk factors that justify a medical examination (e.g. accident risks, noise exposure, night work). The draft has been submitted for public consultation, after which the final version is expected to be adopted shortly. In addition, employers may decide to continue to apply the current rules, in which case employees will continue to receive a free medical fitness assessment before starting work and at regular intervals during the employment relationship.
The change has raised a number of questions and criticisms, particularly from various employee representative organisations and trade unions. But beyond the issue of how it may be detrimental to the interests of workers, the change also raises legal questions and dilemmas.
According to the Hungarian Labour Code, employers will continue to have the basic obligation to ensure that the requirements for safety and health at work are met. Employees may only be employed for work that will not have any adverse effects on them, taking into account their physical constitution, development and state of health. Employers are also obliged to adapt working conditions and working hours to changes in the employee’s state of health.
This obligation can be safely met on the basis of a fitness-for-duty assessment which shows that the worker is fit for the job. If the fitness is found to be limited, the obligation to adapt the working conditions and working hours can also be safely fulfilled.
Without a company doctor, making these decisions becomes more complicated. Employers do not have an accurate picture of the employee’s health and usually do not have the knowledge to assess fitness. The decision as to whether an employee is medically fit for a particular job is essentially a matter for a medical expert. By not having a doctor testing fitness for work, employers may be taking a significant risk and making it more difficult to comply with health and safety legislation.
In addition, in Hungary, an employer can only terminate an employment relationship for cause, and one of those causes for termination is if the employee is medically unfit for work. Up to now, this could be based on the results of the fitness for work test or, if that test left any doubt, on the opinion of the local occupational health centres.
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For employers where the fitness test is not compulsory, it is not clear at this stage what can serve as the basis for dismissal on health grounds. This will have to be determined in practice by the courts in the future.
In addition, employers have been able to successfully defend themselves based on the results of fit-for-work medical tests when employees have asserted claims that their health has been affected by work. This will not be possible, and in general meeting all applicable health and safe rules and regulations may be more difficult, if fit-for-work testing is abandoned.
Therefore, employers should consider whether or not to voluntarily continue with fitness-for-work testing where it is no longer required by law, as there currently a great deal of uncertainty due to the lack of legislation and practice.
Comments from other countries
Argentina
In Argentina, pre-employment medical examinations are mandatory and must be carried out prior to the start of the employment relationship. Pre-employment medical examinations are intended to determine whether the applicant is suitable for the activities that will be required at work. In no case can they be used for discriminatory purposes. When workers are exposed to risk agents as part of their work duties, they must undergo periodic examinations to avoid the development of occupational diseases. Pre-transfer medical examinations must also be carried out before a change of job tasks when the new tasks involve potential exposure to one or more risk agents which were not related to the previous tasks. There are other types of examinations that are optional, including examinations after prolonged absences, upon a change of tasks that results in the cessation of exposure to risk agents, and upon termination of the employment relationship (to allow for the timely treatment of occupational diseases and the detection of any disabling consequences). Pablo Buracco
Brazil
In Brazil, occupational health assessments are mandatory on hiring and termination, the latter being a condition for the termination. Employees who are unfit for work must recover fully before the employer can terminate their employment. Recurring assessments are also required; the frequency depends on the degree of risk of the activity. Apart from the traditional physical health issues, after the pandemics, there is a growing concern about workers’ mental health issues related to remote work. Jose Carlos Wahle
Chile
In Chile, employers are not required to have a ‘company doctor’, nor are all employees required to undergo a medical examination before starting work. However, similar to the Hungarian legislation, in Chile the employer is obligated to take all necessary measures to effectively protect the lives and health of all of its employees. As part of that duty, the employer must obtain a medical certification of suitability before an employee performs dangerous or hazardous activities or for particular industries (e.g. employees working at high altitudes or in the mining industry). This is done through ‘occupational examinations’ to determine whether the employee’s health conditions are compatible with these working conditions. Marcela Salazar
Czech Republic
In Czechia, an employer has similar duties in relation to OHS as in Hungary. As of now, entry health checks are mandatory for all positions and all work categories. However, draft legislation is being prepared which would abolish this obligation for non-risk work (i.e. the first work category and the second non-risk work category). Since January 2023, periodic health checks have not been mandatory for non-risk work if ‘professional risks’ (i.e. factors such as chemicals, dust, work at heights, or night work) are not present. That does not prevent them being done on a voluntary basis (upon the employee’s request or the employer’s order). In other work categories and for employees facing ‘professional risk’, periodic health checks are mandatory. Jakub Lejsek
Finland
In Finland, only employees working in jobs involving a particular risk of illness are subject to legally mandated health checks. Employers are obliged to arrange regular health checks at the occupational health service if the work involves factors that are defined in the regulations as posing a particular risk of illness (e.g. noise, flour dust or solvents) or other health risks. The employee is obliged to undergo such statutory health checks. The occupational health service must also carry out a health check if there is a suspicion that the work poses a risk to health, for example due to one-sided physical strain or psychosocial overload. Matias Tamlander
Germany
In Germany, there is no general obligation to undergo a medical examination to check for ‘fitness for work’. However, such examinations are common in some sectors, for example in the public sector (e.g. police). The general duty of care obliges employers to take precautions to ensure that employees do not fall ill or injure themselves at work. This duty requires employers to carry out a risk assessment. For special situations (especially pregnancy), employers may be obliged to issue a ban on employment as part of the general duty of care. Levke Jost
Greece
Businesses with more than 50 employees are required to use the services of an Occupational Health Physician. This obligation also applies regardless of employee count in cases of exposure to biological agents, carcinogens, asbestos, or lead, as well as in temporary employment agencies. Similar to Hungary, employers who meet the above criteria must maintain an Individual Health Record for each employee (in accordance with GDPR regulations). The Ministry of Labour and Social Security last updated the guidelines for maintaining these records in October 2023. Theodora Ntentopoulou
Italy
According to Italian law, a health examination is mandatory when, according to the risk assessment document, workers are exposed to an occupational health and safety risk because of their job duties. An examination is mandatory, for example, in the case of night work, use of video display screens, exposure to physical or chemical agents, or handling of heavy loads. In such cases, the employer must appoint a company doctor who will make medical examinations when required by law. There are several kinds of medical examinations, including pre-employment, periodic (to check the state of health and confirm fitness for the specific task), at the worker's request, upon a change of duties (to assess fitness for the new task), upon return to work following a health-related absence of more than 60 continuous days, and (in some cases provided for by law) upon termination of employment. The medical check may declare the employee fit for duty, partially fit (able to carry out the duties with some prescribed limitations), or temporarily or permanently unfit for the job. In the last two cases, the employer must find another job position to (temporarily or permanently) assign the employee. If this is not possible, the employee must be suspended from work until the temporary unfitness ends. If an assessment of permanent unfitness is confirmed by the competent public office, the employee may be dismissed. In this regard, recent case law requires the employer to prove that it tried to make every reasonable accommodation before dismissal. Otherwise, the dismissal may be declared unlawful and the employee may be entitled to reinstatement. Stefano de Luca Tamajo and Vanessa Forcolin
Kazakhstan
In Kazakhstan, an employer is required to provide for medical examinations only in cases expressly stipulated by legislation. This mostly relates to employees exposed to harmful or hazardous conditions and/or in certain listed professions. In those cases, examinations are performed upon hiring (to determine fitness for the work), periodically thereafter, pre-shift (one hour before work), and post-shift (within 30 minutes after work). To perform this obligation, employers enter into a contract for medical services with a licensed healthcare organisation. All other types of non-mandatory medical examinations are at the sole discretion of the employer; the conditions for such examinations will be set out in the employer’s internal acts. Yuliya Chumachenko
Luxembourg
In Luxembourg, successful job applicants are required to undergo a medical examination by the occupational health service before they begin work. During the employment relationship, other periodic medical examinations are provided for. For example, there is a compulsory periodic medical examination for certain categories of workers (e.g. young people, workers in high-risk jobs). A medical examination may also be done at the request of the employee, the employer or the joint committee. A medical examination is also required in the event of an uninterrupted absence of more than six weeks or a change of job involving different working conditions. If an employee is declared unfit for work by the pre-recruitment medical examination, the employment contract is automatically ended. If the employee is declared unfit for work in a particular position by a periodic medical examination, the employer must not occupy the employee in that position. If the employer is unable to reassign the employee, it may dismiss the employee with notice, but only if it can prove that it was impossible to continue to employ the employee. Nina Thiery
New Zealand
In New Zealand, medical examinations prior to or during employment are not a general legislative requirement. For some safety sensitive roles, medical assessments are required pursuant to industry-specific regulations. An employer can require a prospective employee to complete pre-employment medical checks (such as drug testing), and to disclose existing medical conditions which may affect the employee’s ability to perform the role. Once employed, an employer can require an employee to undergo a medical assessment (at the employer’s expense), provided the request is justified. For example, a medical assessment may be required where the employer holds a genuine health and safety concern. Peter Kiely
Poland
In Poland, an employer is obliged to refer an employee for an initial preventive examination before allowing the employee to work. The scope of the examination is decided by the occupational physician on the basis of the employer's referral describing the hazards of the position or the scope of activities. During the course of employment, employees must undergo periodic examinations. The frequency of examinations is decided by the occupational physician, taking into account the job position, hazards, and the employee's state of health and age. Employees must also undergo follow-up examinations in the event of incapacity for work lasting at least 30 days. Monika Czekanowicz
Sweden
Employers in Sweden must at all times protect employees from injuries and ill health, but there is no general obligation for employers to provide employees with a medical ‘fitness for work’ test. The obligation for employers to provide medical check-ups or health assessments is limited to work where there is a higher risk for ill health, such as work with allergenic chemical products or night work. Employers do however often provide employees with medical check-ups as a work benefit for them to keep track of their well-being. Knut Elmstedt
*Toffoletto De Luca Tamajo
**Bozsonyik-Fodor Legal
