Suche 
Under Hungarian law, employers have a duty to ensure that employees can work safely and without risk to their health. One way of ensuring this was through mandatory occupational health assessments. Before 1 September this year, all employers had to have a medical service provider (a so-called company doctor) and all employees had to undergo a medical examination before starting work. Periodic and, in justified cases, extraordinary medical examinations were also compulsory. This meant that employees had to undergo a free medical examination before starting work and at regular intervals during their employment.
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.
Takeaway for employers
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.
