According to the Labour Law (Off. Gazette of the RS no. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of the CC, 113/2017 and 95/2018 – authentic interpretation), an employee with health issues, established by the competent medical authority pursuant to the law, shall not be allowed to pursue work that could result in deterioration of their health or consequences dangerous for their environment (Article 81, paragraph 2).
The Labour Law also stipulates that an employer is obliged to ensure that the employee – a person with a disability or health problems (from Article 81, paragraph 2 of the Labour Law) performs jobs that correspond to their work ability, otherwise the employee shall be considered redundant in terms of Article 179, paragraph 5, item 1 of the Labour Law (Article 101 and 102).
In addition to the Labour Law, the assessment, i.e., establishment of health condition relating to work and/or working ability of employees is governed by other regulations. Namely:
- The Law on Health Protection ( Gazette of the RS no. 25/2019) prescribes that health activities in the field of occupational medicine and/or protection of health at work, namely: assessment of work ability of employees with work-related diseases, consequences of work-related and not-work-related injuries, assessment of work and overall living ability, assessment of physical injury and other expertise relating to work ability of employees shall be done by the institute for occupational medicine;
- The Law on Professional Rehabilitation and Employment of Persons with Disabilities ( Gazette of the RS no. 36/2009, 32/2013 and 14/2022 – other law) prescribes that the request for assessment of work ability shall be filed to the organisation in charge of employment operations (National Employment Service), while the finding, opinion and assessment with regard to work ability, possibility of employment or maintaining employment shall be issued by the expert body of the organisation in charge of pension and disability insurance (Republic Fund for Pension and Disability Insurance); whereas
- The Rulebook on Closer Method, Costs and Criteria for Assessing Work Ability and Possibility of Employment or Maintaining Employment of Persons with Disabilities ( Gazette of the RS no. 36/2010 and 97/2013) stipulates that the request for assessment of work ability and possibility of employment or maintaining employment shall be filed to relevant organisational unit of the National Employment Service, according to the place of residence of the applicant (personally by employee, at the expense of the employer).
Dilemmas regarding the work ability assessment
Considering the above-mentioned provisions, employers in the Republic of Serbia often have dilemmas with respect to the following:
- Whether an opinion of a doctor (e.g., a doctor of a certain specialization or a specialist in occupational medicine) independently constitutes a decision on the assessment of employee’s work ability (in terms of Article 81, paragraph 2 of the Labour Law, with reference to Article 101 and 102 of the Labour Law) or is it only a reason, i.e., grounds for referring an employee to the assessment of work ability?
- Is the body in charge of assessment of employee’s work ability (in terms of Article 81, paragraph 2 of the Labour Law, with reference to Article 101 and 102 of the Labour Law) the Occupational Medicine Service or National Employment Service? Is the employer’s decision on termination of employment agreement due to the lack of appropriate jobs according to the employee’s work ability assessment based on assessment and/or decision of a doctor from Occupational Medicine Service or the decision of the National Employment Service?
Opinion of the competent ministry
The above stated doubts have been removed by the recent Opinion of the Ministry of Labour, Employment, Veteran and Social Affairs no. 011-00-00077/2023-21 of 17 March 2023, which reads:
- The doctor’s report by itself cannot represent a decision on assessment of work ability. Namely, it is necessary to distinguish between the procedure carried out under the regulations in the field of health and safety at work (e.g., with regards to previous and periodical medical checks of employees at jobs with higher risk) and procedure conducted in individual administrative assessment procedure, i.e., assessment of work ability (and possibility of employment and/or maintenance of employment according to the Law on Professional Rehabilitation and Employment of Persons with Disabilities).
- In this sense, the body in charge of assessment of employee’s work ability is the National Employment Service, which enacts the decision on the assessed work ability and possibility of employment and/or maintenance of employment as delegated task, on the basis of findings and opinions/assessment of the expert body of the organisation in charge of pension and disability insurance matters (Republic Fund for Pension and Disability Insurance).
- Among other, the commission of the stated expert body includes the medical expert of relevant (or related) field of expertise depending on the work ability assessment and possibility of employment and/or maintenance of employment, considering the main disease, i.e., impairment of the employee whose ability is assessed, while medical documentation represents an integral part of the documentation enclosed with the request (and analysed), as well as the existing findings of the medical specialist.
By Lara Maksimovic, Senior Associate, PR Legal
