Employers in the Republic of Serbia often face certain quandaries with respect to the work ability assessment procedure. Some of them have recently been removed by an opinion passed by the competent ministry.
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, is not 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 further 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 matter of assessment, i.e., establishment of health condition relating to work and/or work ability of employees is governed by several other regulations. Namely:
- The Law on Health Protection (Off. 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 injuries and injuries not related to work, assessment of work and overall living ability, assessment of physical injury and other expertise pertaining to the work ability of employees shall be done by the Institute for Occupational Medicine;
- The Law on Professional Rehabilitation and Employment of Persons with Disabilities (Off. 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 regards 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 Course, Costs and Criteria for Assessment of Work Ability and Possibility of Employment or Maintaining Employment of Persons with Disabilities (Off. 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 the 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).
Quandaries regarding the work ability assessment
Considering the above-mentioned provisions, employers in the Republic of Serbia often face certain quandaries 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 an 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 solely a reason, i.e., grounds for referring an employee to the assessment of work ability?
- Is the body in charge of 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) the Occupational Medicine Service or the National Employment Service? Should the employer’s decision on termination of employment agreement due to the lack of appropriate jobs according to the employee’s assessed work ability be based on the decision of a doctor from Occupational Medicine Service or the decision of the National Employment Service?
Opinion of the competent ministry
The above-listed quandaries 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 as follows:
- 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 an individual administrative 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 an entrusted task, on the basis of findings and opinion/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 abovesaid expert body includes a medical expert of relevant (or related) field of expertise depending on the main disease, i.e., impairment of the employee whose work ability is being assessed, while medical documentation represents an integral part of the documents enclosed (and analysed) with the request, as well as the existing findings of the medical specialists.