The Supreme Court has reiterated its case law regarding compulsory medical examinations at work, also pointing out that, when these are compulsory, they cannot be replaced by other kinds of controls performed outside the company and the employment activity.

The judgment ratifies the compulsory nature of worker medical examinations, in this case in the passenger transport sector.

The court confirms the case law maintained to date, but resolves in its judgment a very relevant additional issue with obvious practical importance. The judgment considers and analyzes whether, in cases in which medical examinations have been established as compulsory (following the above-mentioned case law), it is possible to replace the company medical examination when, outside the company (for example, in the administrative area), another series of checks and examinations of health or aptitude are performed, for example, in order to obtain or renew a certain license. To be specific, the judgment analyzed considers whether the medical examination which is performed so as to obtain or renew a driving license can replace the company medical examinations and render them unnecessary in cases in which, in accordance with the legislation on prevention of occupational risks, these may be compulsory for the performance of a certain employment activity.

This was ruled against by the Supreme Court, which considers that this type of medical examinations performed outside the company in order to obtain or renew certain licenses cannot make up for the compulsory nature of employers’ medical examinations, and this is so since the latter seek to ensure the employer’s duty to provide protection of health and safety at work, the medical examinations required to obtain or renew licenses outside the employment environment do not serve the purpose and the grounds established in prevention of occupational risk legislation, since they are not linked to the performance of certain functions or a job and, therefore, their purpose is not to measure the worker’s ability to carry out certain functions at work. In conclusion, both examinations seek to measure different circumstances and aptitudes of the worker and, therefore, are not substitutes.

Consequently, the judgment holds that the performance of medical examinations outside the employment environment does not make up for or avoid the need for workers to undergo the medical examinations which may be compulsory at work in cases in which they are required due to the nature of the job to be performed. Thus, the Supreme Court, reiterating the case law which was applicable in relation to compulsory medical examinations, confirms their extraordinary nature and casts greater light on the fact that they cannot be replaced by other mechanisms for monitoring workers’ health.

Difficult balance

In our previous blog entry Medical examinations: voluntariness and restrictions on the right to privacy we already examined the delicate balance existing between the voluntary and compulsory nature for workers of undergoing medical checks and examinations by employers. To be specific, that article analyzed the Supreme Court judgment of March 7, 2018, which ratified the general rule of the voluntary nature of medical examinations at work, except in cases in which the failure to perform them could endanger the health or physical safety of other workers or of other persons. In that case, it ended by concluding that medical examinations are compulsory for workers employed in the private security sector.

Daniel Díez Monge

Garrigues Employment & Labor Law Department