Medical checkups: voluntariness and limits on the right to privacy

24 May 2018

In accordance with article 22 of Occupational Risk Prevention Law 31/1995, of November 8, 1995, employers are obliged to guarantee workers the periodic monitoring of their health according to the risks inherent in their position and must offer staff the possibility of having periodic medical checkups and specifically, according to Spanish case law, at least once a year, subject all times to the consent of the worker.

Therefore, as a general rule, regular health monitoring constitutes a worker’s right and not an obligation that may be imposed by the employer, since checkups will “always” require the prior consent of the worker. This is what is known in case law as the “principle of voluntariness.

This notwithstanding, the general rule of the principle of voluntariness allows for exceptions, expressly regulated in article 22, which provides that periodic monitoring of a worker’s health will not require the worker’s consent when the checkup is essential to assess the effects of working conditions on workers’ health or to verify whether a worker’s state of health may be hazardous to the worker, to other workers or to other people related to the company, or lastly, when it is established in a legal provision relating to protection of specific risks and particularly hazardous activities.

In such cases, in light of the risks inherent in the work performed, periodic health monitoring becomes an obligation of the worker and they must submit to the medical checkups made available to them by the employer.

On March 7, 2018, the Labor Chamber of the Supreme Court issued judgment 259/2018 taking into consideration the scope of the principle of voluntariness, in which it ruled on the non-absolute nature of the principle and on the possibility of requiring workers to submit to medical checkups in situations where the lack of periodic health monitoring could come into conflict with or jeopardize other fundamental rights and other legally protected rights.

Specifically, the case examined in the judgment consisted of a collective claim raised by the majority unions, seeking to have the decision adopted by a private insurance firm to require all of its workers to submit to mandatory periodic medical checkups rendered null and void.

The Supreme Court, in analyzing the groups of workers affected by the dispute, concluded that for some workers the right to privacy prevailed over the legal right with which it came into conflict, while for others this was not the case. Thus the right to privacy cannot be used in all cases to justify not having medical checkups and there are a series of circumstances that must be taken into account in relation to the “principle of voluntariness”.

In its judgment, the Supreme Court (whose view may be extrapolated to other sectors, such as, for example, healthcare, passenger and goods transport, education, etc.) considered that the regulations protecting the worker’s right to privacy, on which the worker’s voluntariness to have medical checkups is based, also require, at the same time, that the worker accept sacrifices when his/her refusal to have the checkups may come into conflict with other basic and fundamental rights or other legally protected rights.

As can be seen, the Supreme Court has facilitated to some extent the application of exceptions to the voluntary nature of medical checkups set out in article 22 and opens the door for a situation in which the importance of the right to privacy of a worker who does not wish to have medical checkups must be weighed against the potential conflict that may arise with other basic rights that enjoy the same level of legal protection.