MEDICAL EXAMINATION: SEPARATE PROBLEMATIC ISSUES ON LEGAL SUPPORT

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MEDICAL EXAMINATION: SEPARATE PROBLEMATIC ISSUES ON LEGAL SUPPORT

Journal Title: Право та інновації - Year 2018, Vol 2, Issue 22

Abstract

Problem setting. The Preamble of the Fundamentals of the Ukrainian legislation on health care says: “Every person has a natural, essential and unbreakable right to health protection”. I. Ia. Senyuta (a) adduces convincing arguments concerning consideration this right as a natural one, and (b) suggests to interpret this right as the ability of a person to use all the social, primarily the state, funds aimed at the preservation, strengthening, development and, in case of violation, recovery of the highest attainable standard of physical and mental condition of his body. Analysis of recent researches and publications. Works of such scientists V. M. Andriyiv, N. B. Bolotina, O. D. Zaykin, M. L. Zakharov, R. I. Ivanova, P. D. Kaminska, O.Ie. Machulska, O. V. Moskalenko, V. D. Royik, E. G. Tuchkova, O. M. Yaroshenko, etc, should be recognized as scientific and theoretical researches in this area. However, despite their significant achievements, there is a lack of comprehensive scientific papers in Ukraine on problems concerning legal regulation of medical examination. Article’s main body. It is established that there is a conflict between the provisions of part 2 of article 17 of the Law of Ukraine “On Labour Protection”, whereunder there is an obligation of employer to remove employee from work, and article 46 of the Labour Code of Ukraine, which allows only the removal of employee from work by the employer in case of refusal or circumvention of compulsory medical examination. This contradiction is a subject to elimination by fixing in legislation of the uniform instruction obliging employer to dismiss the employee in the specified case. Conclusions and prospects for the development. The discrepancy between employee and current position or active job because of health conditions is grounds for termination of the employment contract on the initiative of the employer according to § 2 part 1 of article 40 of the Labour Code of Ukraine. K. V. Plesniov considers that the dismissal of employee on this basis occurs in the following cases: (a) employee's active job creates direct threat of his life or health; (b) because of health conditions employee is unable to perform his duties properly; (c) employee's active job creates direct threat of health or life of labour collective’s members and the citizens who surround him during labour activity. However, it should be noted that the dismissal according to § 2 part 1 of article 40 of the Labour Code of Ukraine is allowed in case of impossibility to transfer employee, with consent of employee, to another job.

Authors and Affiliations

O. A. Iakovlev

Keywords

EP ID EP488454
DOI -
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