When is the employee’s state of health grounds for termination of the employment contract at the initiative of the employer?

Labor Law
Polishchuk Vasily
24.06.2021
Law Services - When is the employee’s state of health grounds for termination of the employment contract at the initiative of the employer?
Given the continuation of quarantine until the end of summer 2021, it is interesting to know:
❓Can the employer terminate the contract in case of deterioration of the employee’s health on its own initiative?
❓Can the employer terminate the contract in case of temporary disability of the employee (hospital stay)?
☝️🧑‍🎓In accordance with paragraph 2 of Part 1 of Art. 40 Labor Code of Ukraine, indeed, one of the grounds for termination of the employment contract at the initiative of the employer is to identify the employee’s incompatibility with the position or work performed due to health conditions that prevent the continuation of this work.
The revealed inconsistency of the employee to the position held or the work performed due to the state of health is that:
1️⃣ the employee cannot perform his / her duties due to the state of health (and not due to the fault of the employee);
2️⃣ detection of common diseases that are contraindications for continued employment;
3️⃣ due to the deterioration of the health of the employee performance of duties creates a danger to members of the workforce or citizens who are in contact with him.
📚Part. 1 Art. 170 Labor Code of Ukraine establishes the obligation of the employer to transfer employees to another, easier job in accordance with a medical opinion:
✅in case of disability due to injury or other damage to health,
✅obtained in production;
✅in occupational diseases,
tuberculosis
✅at the general serious diseases.
❗️The consent of the employee must be a prerequisite for such a transfer.❗️
⚠️⚠️⚠️If an employee refuses to transfer or is absent from the company, which he could perform without harm to his health, the employer may raise the issue of his dismissal..
🖌Remember! Such dismissal is allowed only with the prior consent of the trade union of which the employee is a member.
So, the long-awaited answers:
📍Can the employer terminate the contract in case of deterioration of the employee’s health on its own initiative?
✅Yes, but only if there are conditions: inadequacy of the employee to the position due to health condition, confirmed by a medical report if the employer offered “easier work” at the same company, and the employee refused it, the union of which the employee is a member, agreed to dismiss.
📍Can the employer terminate the contract in case of temporary disability of the employee (hospital stay)?
✅No, temporary disability is not a ground for termination of the employment contract at the initiative of the employer under paragraph 2 of Part 1 of Article. 40 of the Labor Code.