Answer:
Since the Labour Code 2019 took effect, the prescribed content of the Employer’s obligation to hold periodic health examinations has no longer been regulated. However, this does not exclude the Employer’s obligation to hold periodic health examinations for their Employees, because this content is specified in Article 21.1 of the Law on Labour Safety and Hygiene. Accordingly, the Employer must hold health examination for the Employees at least once a year; for the Employees who do heavy, toxic, dangerous or extremely heavy, toxic or dangerous occupations or jobs, who are disabled, minors or elderly, they will be given a health examination at least once every 6 months.[1] Thus, it can be seen that the Labour Code only prescribes that the Employer is obliged to hold periodic health examinations for the Employees, but does not prescribe that the Employees’ obligation to participate in the medical examination organised by the Employer.
When holding periodic health examinations for the Employees, the Employer needs to ensure that the Employees are examined according to the contents recorded in periodic health check books according to regulations, including the following contents:[2]
| Categories | Examination contents |
| Physical examination | Measure height, weight, BMI, pulse, blood pressure, respiration rate… |
| Clinical examination | Internal medicine, eyes, ears, nose and throat, molar facial, dermatology. |
| Examination | Haematology/ biochemistry/X-ray and other tests as directed by your doctor |
In this case, the Employees do not completely refuse to participate in periodic health examinations, but only refuse to participate in the examination in two categories of X-ray and blood sampling in the list of subclinical examination for the reason of “fear of taking blood and being afraid that X-ray affects health”, the labour law has not regulated how to handle it. However, participation in periodic health examinations is considered to be the right of the Employees when working for an enterprise, so the act of refusing the participation in X-rays and taking blood for testing of the Employees can be considered that the Employees have refused to receive their employment benefits and will not be considered as a violation of the law, even though whether the reasons given by the Employees are appropriate or not.
However, neither the refusal to participate in periodic health examinations nor the refusal to participate in X-rays and blood sample tests of the Employees will exclude the obligation to hold periodic health examinations of the enterprise. If the Employer does not hold periodic health examinations and occupational disease examinations for the Employees, the enterprise may be subject to n administrative penalty from VND2,000,000 to VND6,000,000 for each Employee, but the maximum amount will not be more than VND150,000,000 except for the case that the Employer has organised periodic health examinations and occupational disease examinations for the Employees but the Employees do not want to do it.[3] Thus, in this situation, the Employer still has to hold periodic health check examinations for the Employees and if any Employee refuses to do the examination, the Employer will be excluded from its responsibility. In order to avoid risks arising in the future for the Employer, when holding periodic health examinations, the Employer should prepare a list of Employees and have a record of the Employees’ signatures regarding the examination/no examination/examination limit to some categories.
Also, it should be noted that, in respect of some types of jobs in connection with the business activities of an enterprise as prescribed by the Labour Code, any Employees who have to do these jobs shall have their health examined to ensure their health, then the enterprise can carry out business activities, if the Employees refuse to examine, the Employees might be considered not to comply with the decision of their superior and can be imposed disciplinary actions by the Employer according to the ILR of the enterprise.
[1] Article 21.1 Law on Labour Safety and Hygiene
[2] Article 6.3 and Appendix 3 of Circular 14/2013/TT-BYT of Ministry of Health date 06 May 2013
[3] Article 5.1 and Article 21.2 of Decree 28/2020/ND-CP of the Government dated 01 March 2020.
