Duty or offer?

Types of Occupational Health Precautions

Compulsory benefits

Compulsory provision is an occupational health provision which the employer must arrange for in the case of certain particularly hazardous activities. These activities are described in detail in the Annex to the Ordinance on Occupational Medical Care (ArbMedVV). You may only perform an activity if you have previously participated in a compulsory pension plan. More precisely: The employer may only allow you to carry out this activity. You are therefore obliged to attend the pension appointment. If you do not take part in a compulsory pension scheme, this is contrary to duty and can have consequences. For example, the employer can suspend payment of the salary until you have taken part in the compulsory pension plan. If the employer fails to arrange for compulsory pension provision or does not do so in good time, the employer may even be fined and, under certain circumstances, even fined.

The obligation precaution is thus no desire concert, as one says so beautifully. For both sides - you and your employer.

Nevertheless, pension provision is for your protection and in no way intends to curry you.

The supply precaution

The occupational pension plan is an occupational health plan that the employer must offer you for certain hazardous activities. These activities are described in detail in the Annex to the Ordinance on Occupational Health Precautions. It is, so to speak, the next level below compulsory provision and becomes relevant if there is a risk in your activity, but this is low, so that it is up to you to decide whether you want advice or not. The offer precaution is thus only obliging for your employer, but not for you!

If an offer provision is not offered or not offered in time, the employer is threatened with a fine and under certain circumstances even a penalty. You can therefore reject the offer of occupational health care without consequences under labour law. The disadvantage for you, however, could be that the legal situation with regard to a later occurring illness or occupational disease, which could have been recognised in time with the occupational health precaution, is unclear. It is conceivable, for example, that you may be confronted with the accusation that you have not fulfilled your obligations to cooperate.

It never hurts to make an offer precaution!

The wishful precaution

The wishful precaution is an occupational health precaution that the employer must grant you in addition to the Ordinance on Occupational Health Insurance (ArbMedV) for all activities. It is practically the last step in the trilogy of pension plans. This entitlement only does not exist if you cannot expect any damage to your health. This is to prevent people from seeking medical advice for each individual activity. It is to be seen that one does not need e.g. a medical examination or advice, in order to punch a stack of documents. Every occupational health care needs time (usually half an hour or more depending on the effort) and of course causes costs. This must also be taken into account.

In contrast to the other two precautions, the employer is not active here. You must do this yourself.

In any case, you have the right to simply ask the company doctor if in doubt.

The aptitude test

First of all:

The aptitude test is not part of the occupational health precaution and is not subject to the legal basis of the ArbMedVV!

Similar to the compulsory provision, however, the employer can demand that you have your suitability to perform an activity determined by a doctor. This is usually the prerequisite for employment.

Aptitude or fitness tests are subject to a private-law or labour-law agreement between your employer and you. During the aptitude test, you practically provide proof that you are fit for the job in terms of health. This is also the essential difference to occupational health care, which aims to inform and advise you personally about health risks at work. Occupational health and safety or accident prevention regulations, for example, occasionally contain requirements regarding the physical and mental aptitude of the employee (the so-called aptitude reservation), e.g. vehicle driver, fire brigade service or crane operator.

The medical examination can be used to determine physical and mental aptitude if no other equally effective means are available which are less restrictive of the right of personality. The legislator is therefore already aware of the fact that an aptitude test does indeed see a kind of interference with the right of personality of each individual. However, he also makes it clear that an employer can refuse an employment if you can prove that you are not suitable for a job. If you see a lot of sneaking, you can't become a pilot. That's a pity for you, you can't help it. But it's good for the passengers.

However, there are only a few regulations that require aptitude tests: Driving licence regulation (§11 FeV), hazardous substances regulation (pest control and fumigation), locomotive driving licence regulation (§5 TfV), maritime labour law (§11 SeeArbG), air traffic licensing regulations (§§24a, 24b LuftVZO). An aptitude or fitness examination does not replace occupational health precautions.

The aptitude test hardly plays a role at uni Konstanz. In addition, you are (hopefully) already employed. This means that your employment can no longer be rejected due to lack of aptitude. Whether you can be assigned to a certain job for the first time may be determined by an obligatory precaution...