How often should company medical examinations be carried out?

The occupational risk prevention regulations do not require annual health check-ups. If there are no jobs in the company with a risk of occupational disease, in which case the provisions of the specific regulations for each type of disease should be taken into account, there is no breach by the company for not offering to carry out medical examinations for two consecutive years.

Periodicity of recognition

The case of a female worker requesting the indemnified termination of her contract for serious breaches of the employer’s obligations that occurred during the period in which the company was subject to an ERTE due to the health crisis caused by COVID-19.

It denounces the following breaches:

1.Failure to guarantee the minimum weekly rest of one and a half days as she was affected by the partial ERTE at weekends. The worker considered that if she stopped working at weekends, it was not because she was taking the weekly rest, but because she was affected by the ERTE. The Supreme Court of Catalonia rejected this question because it was unaware of the distribution of the worker’s working hours, and therefore could not affirm that affecting her on Saturdays and Sundays would be equivalent to affecting her on days of theoretical rest. Irrespective of this consideration, he points out that not respecting the mandatory rest days would be a cause for termination of the contract only if services had actually been provided instead of work. However, this is not the case, since during the weekends when she was affected, the worker rested from work, even if it was due to the ERTE.

2.Failure to pay 3 extra payments on time. The High Court of Justice of Catalonia rejects that the delay in the payment of the extra payments is sufficiently serious to justify a termination of the contract, given that the total amount that was delayed is less than one monthly payment and the salary corresponding to each monthly payment continued to be paid normally. What occurred is a sporadic delay due to causes that led the staff to accept the pro-rata payment of the payments in accordance with the payment schedule to which the company committed itself and which was not contested by the legal representation of the workers.

3.Failure to comply with the obligation to provide health examinations in 2020 and 2021 on the instructions of the mutual insurance company as a result of the situation arising from COVID-19. The High Court of Justice of Catalonia agrees with the plaintiff in pointing out that during the COVID health crisis, the employer’s health surveillance obligations were not suspended, but considers that there is no employer obligation to provide an annual medical examination as part of the preventive activity. This is because the regulations on the prevention of occupational risks only oblige a periodicity, but do not establish which periodicity. Nor does the collective agreement applicable in the company establish a specific frequency, nor are there any workplaces in the company where there is a risk of occupational diseases that require the company to take into account the specific protocols and health and safety recommendations established for each type of disease.

Moreover, the fact that for most of the period during which the absence of medical examinations was alleged, the worker was in an ERTE situation, further distances the employer’s conduct from the required seriousness of the breach that would justify the termination of the contract at the employee’s will.

In view of these circumstances, the High Court of Justice of Catalonia upheld the lower court’s judgment dismissing the claim as it did not find a breach of contract.

If you have any questions regarding this issue, please do not hesitate to contact us, by telephone to Isabel Torre Carazo or by e-mail to itc@btsasociados.com, we will be delighted to help you.