Court Ruling Addresses Issue of Consent for Medical Examinations

In the Dominican Republic, the prevention of occupational risks is an essential duty of a corporation. Employers are obliged to ensure the safety and health of all their employees, and they sometimes require personal medical information about their employees to fulfill this obligation. But how can employers preserve employees’ right to privacy? In a recent ruling, the Dominican Republic’s Constitutional Court has cleared up confusion on this point and established principles aimed at addressing these competing duties.

Article 44 of the Dominican Republic’s Labor Code provides that an employee must undergo a medical examination at the request of his or her employer when necessary in order to verify that he or she does not suffer from any incapacity or contagious disease that makes it impossible for the employee to carry out his or her work. On the other hand, Article 42.3 of the Constitution of the Dominican Republic provides an individual cannot be subject, without prior consent, to tests or medical procedures except when his or her life is in danger.

These apparently conflicting legal provisions had caused confusion over whether an employee could withhold consent to a medical examination that the employer considers necessary for health and safety reasons.

In order to clarify this issue, the Constitutional Court, through its judgment number TC/0563/15, has applied a “reasonableness test” to both provisions. In its decision, it concluded that the prevention of occupational risks and the preservation of the safety and health of employees are essential duties of a corporation and can constitute an exception to the principle of voluntariness of medical examinations. Specifically, consent is not required when a medical examination is essential to evaluate the effects of working conditions on the health of employees or to verify whether the health status of an employee may constitute a danger to him or herself or others. That exception is not applicable in all cases, and there are special regulations that require consent in relation to certain tests, including testing for the human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS).

The court emphasized that employers’ practices with medical examinations shall be carried out while preserving employees’ rights and integrity. Furthermore, employers should have policies—which will ensure they do not unreasonably harm the dignity of employees—that the Department of Labor must approve.

Comment

Any policy on this subject should take employee privacy into consideration, and employers may want to limit any medical testing to only those tests relevant to the risks related to an employee’s work.

Written by Lucy Objio of Pellerano & Herrera and Roger James of Ogletree Deakins