What are the options for an employer whose employee has lost, for a long term, his or her capacity to perform the currently held position due to health issues? For the sake of this short treatise we shall assume that this incapacity has not been caused by an industrial injury or occupational disease or threat of an occupational disease.
That employer in such a situation may, pursuant to Sec 41 (1) letter a) of the Labour Code (Act No. 262/2006 Coll., as amended, hereinafter the “LC”), transfer such employee to alternative (different) position / work if, according to a medical certificate issued by the occupational medical services provider or under a ruling of the competent administrative agency having reviewed the medical certificate, the said employee has lost, long-term, his or her capacity to perform current work due to health condition; such transfer to another work is obligatory and thus establishes a duty on the part of the employer. Furthermore, where it is not possible to attain the purpose of the transfer pursuant to Sec 41 (1) letter a) LC by transferring an employee in accordance with the terms of his employment contract, the employer may transfer such employee to work of a different type than agreed in the employment contract (i.e. to a different position), even without the employee's consent. Of course, in such cases the employer shall make sure that such work / position is suitable for the employee with regard to his or her health condition, abilities and, where possible, his or her qualifications (skills).
The employer is not entitled to transfer the incapacitated employee to any random alternative work, which would not be suitable for the employee in light of his health condition, abilities and qualification; it still however depends on the employer´s discretion, to which alternative work he/she will transfer the employee, provided that the aforementioned conditions are met. While doing this, the LC clearly emphasizes the aspects of employee´s health and capacity. If the employer does not have an available position, which would be adequate to employee´s qualifications, but has a position available that is adequate to his / her health and capacity, the employer may transfer the employee to such work (job/position) instead. The transfer itself is a unilateral legal act taken by the employer. The employee´s incapacity to perform the contracted work must be clearly determined in the medical certificate.
When transferring an employee to a different type of work than agreed in the employment contract, there are additional duties that are imposed on the employer, such as the duty to ensure training on statutory provisions and other regulations regarding occupational safety and health protection.
If the work, to which the employee is transferred pursuant to Sec 41 Para 1 Letter a) LC, commands remuneration that is lower than remuneration for the transferred employee’s previous work / position, the transferred employee is not entitled to extra pay, and shall be remunerated according to the new work / position, where he/she was transferred even if the corresponding wage / salary is lower than wage / salary for his previous agreed work.
Before the employee is transferred to another position, the employer must discuss the reason for such transfer with the employee (in advance) as well as the period for which this transfer will last. Nonetheless, even if the employee does not agree with the transfer to another position, the employer may, where conditions laid down in Sec 41 (1) letter a) LC are met, to transfer him to another work even without his/her consent.
Where the employee's transfer to alternative positions means that such work does not conform to the terms of his / her employment contract, the employer shall issue to this employee a written statement giving the reason for the said transfer and its length (duration). The LC does not provide for any specific deadline, in which such statement should be issued by employer. It is however
advisable to issue it prior to, or without undue delay after, transferring the employee, in view of possible sanctions arising in connection with Act No. 251/2005 Coll., as amended, on Labour Inspection. Furthermore, where the employer transfers his/her employee to alternative work which does not conform to the employment contract and the employee does not agree with such measure, the employer may transfer this employee only after consultation with trade union. Such consultation is however not necessary if the total period of the transfer does not exceed 21 working days in one calendar year.
If the employee is transferred to another position in compliance with the law, the employee has the legal duty to perform such work. Should the employee reject or fail to do so, the employer may resort to termination of such employee’s employment unilaterally, by notice of termination (or immediate termination in certain serious cases).
Long-term incapacity to perform contracted position (work agreed upon in employment contract) may also be dealt with (besides an agreement on termination of employment) by termination of employment, by a notice of termination given by employer pursuant to Sec 52 letter e) LC, provided that such fact / reason is certified by a medical certificate issued by the occupational medical services provider or under a ruling of the competent administrative agency having reviewed the medical certificate. Where employees are given notice of termination pursuant to Sec 52 letter e) LC, the employee will not entitled, by law, to receive redundancy payment.