Unfit for Work in Poland – What Next? Employer Obligations and Employee Rights After an Occupational Medicine Examination

Not every absence from work is a cause for concern – but not every medical certificate ends with a return to the office. When an occupational medicine doctor finds an employee unfit for work, a whole system of procedures, obligations and decisions is set in motion, for both the employer and the employee. In practice, this means not only updating documents, but also real staffing, financial and organisational changes. Find out what exactly happens after a negative medical certificate in Poland, who is responsible for what, and which options the Polish Labour Code provides.

What should you do when an employee is found unfit for work? Employer obligations and employee rights

Being unfit for work is not just a medical matter – it is also a real organisational, legal and financial challenge for both parties to the employment relationship. If an occupational medicine doctor issues a certificate stating that there are contraindications to work, the employer may not allow the employee to perform their duties, even if everything previously suggested a quick return. At times like this, an OSH audit can help put procedures in order and make sure that every step complies with current regulations.

What needs to be done immediately after receiving such a certificate?
The employer has to choose one of several courses of action – and each of them has different legal consequences:

• transferring the employee to another position suited to their state of health (mandatory where the incapacity results from an occupational disease or an accident at work),
• terminating the employment contract with notice, observing the notice period, if there is no possibility of employing the person in another position,
• terminating the contract without notice – only if the employee has been on sick leave for longer than the period permitted by the Labour Code (described below) and still cannot return to work.

Remember that an employee may not be allowed to work without a valid certificate confirming their fitness for work (Article 229 § 4 of the Labour Code). Breaching this prohibition has serious consequences – including liability for any accidents and fines imposed by the National Labour Inspectorate (PIP). Missing or expired medical examinations are among the irregularities most frequently found during PIP inspections.

On the other hand – if you are an employee – you may be entitled to sick pay, sickness benefit from the Social Insurance Institution (ZUS) and a compensatory allowance if you are transferred to a lower-paid position because of an occupational disease or an accident at work. Being found unfit for work is therefore not an automatic end of employment – but it is a clear signal that decisions, documentation and action in line with the law are needed.

The occupational medicine doctor did not clear me for work – is this the end of my employment?

If, after a long absence or during a follow-up examination, the doctor issues a certificate stating that you are unfit for work, this does not yet mean that you will lose your job. But – and this is very important – everything depends on several factors: the type of contract, length of employment, the employer’s options and the cause of the incapacity.

What can happen after such a certificate?

• If the employment contract has not yet been signed (pre-employment examination), the employer is not obliged to conclude it – even if the terms had already been agreed.
• If you are already employed, the employer may transfer you – provided there is a vacant position suited to your state of health and qualifications.
• Otherwise, the contract may be terminated – with or without notice, depending on the cause of the incapacity and how long your sick leave has lasted.

It is worth remembering that under the Labour Code, if a medical certificate states that the work has a harmful effect on the employee’s health and the employer does not transfer them to other work within the period indicated by the doctor, the employee may terminate the contract without notice (Article 55 § 1). At the same time, the employer does not have to create new positions. However, if the employer fails to act – for example, does not refer the employee for examinations in time, or does not offer an available suitable position where the law requires a transfer – and the employee remains ready to work, the employee may claim remuneration for the period of downtime.

This point is often underestimated – many employers do not realise that in such situations it is up to them to prove that they could not provide suitable work. Failure to act can lead to court disputes and the need to pay compensation.

If you are an employee – do not be afraid to ask about alternative positions and to stand up for your rights. And if you are an employer – consult your OSH department or use OSH consultancy in disputed cases before making a decision that could cost the company far more than organising follow-up examinations.

Not cleared for work by the occupational medicine doctor and termination of the contract – when is it allowed and when is it not?

From the perspective of Polish labour law, not allowing an employee to work without a valid medical certificate is not a choice – it is an obligation. But what if this is not temporary and results from a long-term incapacity? Does it mean automatic termination of the contract? Not necessarily – although many employers mistakenly assume so.

The contract can be terminated in three ways – and only one of them allows the employer to act “overnight”. Most often – where there is no occupational disease or accident at work – the employer may terminate the contract with notice, but must observe the notice period. During this time, the employee is entitled to their full remuneration. The employer may release the employee from the obligation to work during the notice period, but must still pay them.

The employer may terminate the contract without notice (Article 53 § 1 of the Labour Code) only after the permitted period of sickness absence has expired. For an employee with at least 6 months of service, this is the total period of sick pay and sickness benefit – as a rule up to 182 days, which already includes the 33 days of sick pay paid by the employer (14 days for employees aged 50 or over) – plus the first 3 months of rehabilitation benefit. For an employee employed for less than 6 months, the limit is 3 months. This must be supported by specific medical documentation, and the entire permitted period of incapacity must have elapsed.

Importantly, some employees are under special protection. An employee who is less than 4 years away from retirement age cannot be given notice of termination, but where a medical certificate confirms that they have lost the ability to perform their current work, the employer may serve a notice changing the terms of work or pay (Article 43). A pregnant employee, on the other hand, must be transferred to other work suited to her state of health – and if this is not possible, released from the obligation to work while retaining her remuneration (Article 179).

Breaching these rules can have serious consequences. Labour court rulings are clear on this point – if a contract is terminated unlawfully, the court may order the employee’s reinstatement and the payment of outstanding remuneration. That is why every decision to dismiss must be well documented, carefully considered and based on applicable regulations.

Periodic medical examinations and incapacity – what if an employee “fails” the check-up?

Periodic examinations are not a formality – they are a legal obligation and a real tool for assessing fitness for work. If, as a result of them, the occupational medicine doctor decides that the employee cannot perform their duties, the employer has no choice – it must act in accordance with the regulations. Not allowing the employee to work is in this situation not only justified, but required.

Under Article 229 of the Labour Code, every employee must hold a valid medical certificate confirming that there are no contraindications to work in a specific position. If a periodic examination shows that the employee’s health has deteriorated – for example, contraindications to working at height, in noise or with chemical substances have appeared – the doctor may not clear them for further work in that position. The employee then loses their fitness for that work, and the situation requires a quick response from the employer.

Importantly – if the incapacity is found during periodic examinations and is not related to an occupational disease or an accident at work, the employer is not obliged to transfer the employee to another position. In other cases, it may, but does not have to, make such a decision. The alternative is termination of the contract – following the appropriate procedures. If the employee is working under a mandate contract rather than an employment contract, different rules apply.

From an organisational point of view, it is worth remembering that without a valid certificate of fitness for work, the employee cannot even be sent for training or on a business trip. Any such activity would be treated as a breach of OSH regulations.

When can the occupational medicine doctor refuse to issue a fitness-for-work certificate – and what then?

A refusal to issue a medical certificate is more than just a “missing stamp”. It is a situation that triggers very specific legal mechanisms. The doctor does not decide arbitrarily – the decision is always based on examination results, medical records and an assessment of whether the employee’s health matches the requirements of the position. If it does not, the certificate is not issued and the employee may not return to work.

In practice, this means that even a single questioned element – for example, being unable to lift loads over 10 kg – may prevent further employment in the current position. And although it sounds like a detail, the case law of the Polish Supreme Court confirms that the employer is not obliged to employ a person who does not meet the full health requirements for a given scope of duties.

It also happens that an employee challenges the certificate – and they have every right to do so. A negative decision of the occupational medicine doctor can be appealed within 7 days of receiving the certificate, through the doctor who issued it, to the regional occupational medicine centre (WOMP). The procedure is set out in the Minister of Health regulation on medical examinations of employees. However, until the appeal is resolved, the certificate remains binding.

That is why it is so important for the company to work with a competent occupational medicine provider and to describe all risk factors accurately in the referral for examinations. Every overlooked detail can have real consequences – not only for staffing, but also legal ones. The same applies when clearing a new worker for duty – medical examinations are only one of the conditions.

How can EHS Consulting help?

A certificate stating that an employee is unfit for work requires a quick and lawful response from the employer. At EHS Consulting, we help companies interpret the results of medical examinations correctly, implement the right procedures and prepare documentation that meets the requirements of the Polish Labour Code. Our support includes an audit of employer obligations, advice on clearing employees for work and assistance in disputed situations. This gives you confidence that every staffing decision – including the difficult ones – complies with the law and is safe for your company.

Contact us: biuro@ehsconsulting.pl, tel. +48 732 228 853.

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