A doctor has prohibited an employee from continuing their current work. Must we reassign them, and what if they refuse other work?

Following a medical examination, a warehouse worker may no longer lift loads, or a machine operator may no longer work in a noisy environment. The Labour Code (Act No. 311/2001 Z. z.) requires the employer to reassign such an employee, but the employment contract determines the scope of that duty. If reassignment is not possible or the employee refuses it, termination by notice or by agreement on medical grounds may be an option.

When you must reassign an employee

An employer must reassign an employee to other work if a medical assessment finds that the employee has lost the capacity to perform their current work on a long-term basis, if they are prohibited from performing it because of an occupational disease or the risk of developing one, or if they have reached the maximum permissible exposure at the workplace (Section 55(2) of the Labour Code). Where capacity has been lost, the medical assessment must conclude that the employee is “unfit on a long-term basis to perform the work assessed” (Section 30f(2) of Act No. 355/2007 Z. z. on the Protection, Promotion and Development of Public Health). A certificate of incapacity for work is not such an assessment.

Even where the conclusion is “fit with temporary restrictions”, you must not allow the employee to perform work that is inconsistent with their state of health and the outcome of their fitness assessment (Section 6(1), letter o), of Act No. 124/2006 Z. z. on Occupational Safety and Health). Discuss the reason for reassignment and its duration with the employee in advance. If reassignment changes the employment contract, give the employee written notification of the reason and duration (Section 55(6)).

Reassignment without consent must remain within the employment contract

The decisive factor is how broadly the contract defines the type of work. If the new work falls within the agreed type of work, you may reassign the employee without their consent. If it does not, the following applies:

The following quotation is reproduced in its original language:

Ak nemožno dosiahnuť účel preradenia podľa odseku 2 preradením zamestnanca v rámci pracovnej zmluvy, môže zamestnávateľ preradiť zamestnanca v týchto prípadoch po dohode aj na prácu iného druhu, ako bol dohodnutý v pracovnej zmluve.

§ 55 ods. 3 Zákonníka práce

In its order in case 2CdoPr/4/2023 of 27. 3. 2024, the Supreme Court of the Slovak Republic considered the dismissal for breach of workplace discipline of an employee with an occupational disease who had not taken up an administrative position to which the employer had unilaterally reassigned them. The court concluded that an employee reassigned to a different type of work without agreement is not required to perform that work, does not breach workplace discipline by refusing it, and cannot validly be dismissed for breach of workplace discipline on that basis. If you agree on a different type of work, it must be consistent with the employee’s medical fitness, and their abilities and qualifications must also be taken into account (Section 55(5)).

When an employee refuses other work

If the employee refuses the work offered or you have no suitable work available, termination by notice on medical grounds under Section 63(1), letter c), may be an option. Notice may only be given if you cannot continue to employ the employee, even on reduced working hours, at the agreed place of work, or if they are unwilling to take up other suitable work you have offered them there or to undergo training for it (Section 63(2)). Therefore, make the offer in writing and obtain confirmation of their refusal. If there are employee representatives at your workplace, you must consult them about the proposed notice in advance; otherwise, it is invalid (Section 74). To give notice to an employee with a disability who has not yet reached retirement age, you need prior consent from the Office of Labour, Social Affairs and Family; otherwise, the notice is invalid (Section 66(1)).

You cannot give notice on this ground during a period of incapacity for work that the employee did not cause intentionally or under the influence of alcohol or drugs. The exceptions to the prohibition on giving notice during a protected period do not apply to this ground (Section 64(1), letter a), and paragraph 3). The rules for notice delivered before the start of sick leave are discussed in the question on giving notice to an employee on long-term sick leave.

Where a medical assessment establishes loss of capacity, the notice period is at least 2 months if employment had lasted at least 1 year on the date notice was delivered, and at least 3 months if it had lasted at least 5 years (Section 62(3)). In cases of occupational disease or the risk of developing one, the notice period is 2 months after a year of employment (Section 62(4)); where employment has lasted less than a year, it is always at least 1 month (Section 62(2)). Severance pay on termination by notice for loss of capacity is payable if employment has lasted at least 2 years (Section 76(1)). On termination by agreement on medical grounds, it is payable even if employment has lasted less than 2 years, and the agreement must state the reason for termination (Section 76(2), Section 60(2)). If an employee is prohibited from performing their work because of an occupational accident, an occupational disease or the risk of developing one, severance pay is at least ten times their average monthly earnings. In the case of an occupational accident, this does not apply if the employee caused it by breaching occupational safety regulations or instructions of which they had demonstrably been informed and compliance with which was consistently required and monitored, or if they caused it while under the influence of alcohol or drugs and the employer could not have prevented the accident (Section 76(3)). The applicable multiples are set out in the question on when severance pay is due.

We will review the medical assessment, employment contract and reassignment options with you and recommend a course of action as part of our managing a difficult employee service. If employment needs to end, we will prepare an offer of alternative work, a notice of termination of employment or a termination agreement. This answer is based on the Slovak Labour Code; for an employee in Czechia, the procedure is governed by Czech law.