Can one voluntarily take time off from work due to medical examination purposes? In a recent newsletter, the administrative guide to the Luxembourg State(de Guichet) makes a distinction between compulsory and not mandatory medical visits to the doctor. It also warnsof the risks taken by the employee for such non-justified absence.
When are medical examinations compulsory?
The lawsof 17 June 1994impose and regulate a certain number ofmedical examinationsfor employees.These arethreefold: medical examination on recruitment,on a periodic basisfor certain categories ofworkers,and afterextended leave.
Regarding risk jobs, a pre-employment medical examination is mandatory as partof anew labour contract, the law stipulates. For the otherjobs, the examination must take place withintwo months after the beginning of the job.
In the latter case, if the medical examinationtakes place after thefirstday,the employment contractcomes into effect, provided that the employee isable to performthe job (resolutive condition). In case of incapacity, the employment contractisautomatically terminated.
In addition,the Grand-Ducal Regulation of 17 June 1997 (on thefrequency of medical examinationsinoccupational health-care) sets a mandatory periodicmedical examination:for night workers, for workers agedless than 21years as well as for workers holding risk-works,for whichthe occupational doctor considered usefula regularmedical examination.
Inthe case of aprolonged work stoppage of more than sixweeks, the employermust inform the occupational health-care of the employee reintegration. In addition, theemployer, the employeeorthe occupational health-care can thenrequest amedical examination.
Eye examination: at last, theGrand-Ducal Regulationof 4 November 1994 (on minimumsafety andhealthrequirements for work withdisplay screen equipment)completes thedispositionprovided by law. It establishes amandatoryeye examinationon a regular basisfor allemployees who meetthedefinition of a computer worker.
Besides theseprovisions, amedical examination may beconducted at the requestof the employer,the occupational physicianor of the employee.The employee may however refuse a visitthat is imposedoutside the above-mentioned statutory requirements.
“Thesemedical examinationsare expressly provided bythe labour Law; theyare consideredas working time. In this context, only the time spent oncompulsory medical examinationsmust be paid,” de Guichet says.
Which obligations for non-mandatory medical visits?
The employee may make medical examinations for private reasons. These however do not come into the framework provided by the law. In this context, the worker is in principle not entitled to be absent from work, without the employer permission.
Otherwise, the employer may sanction an employee for unauthorised absence, “among others through a warning; the employer can also require the employee to take leave or retrieve. In any case, the fact of being absent and to go to the doctor is not in itself a serious cause for dismissal,” the administrative guide to the Luxembourg State warns.
Still in this context, the time spent onnon-mandatorymedical visits shall in principlenot be remunerated, the sitecontinues: “Unless the employer agreesto the absenceand on paying the employeewithout compensationfor those hours.“
Also,in the case ofa medical examination that isnot legally required, an employee wishing to take time off for a medical examinationmust in principle”either make sure that themedical appointmentfalls outsidehis working hours, orseek absence permission fromhis employer.
In the latter case, the employer may requirethe employee torecover the lost hoursor to take vacation leave,” de Guichet concludes.
Marc Alison