The law provides for several cases in which employees must undergo a company medical examination to confirm their physical fitness to perform the tasks assigned under the employment contract. But what are the consequences if such confirmation is never released? Below is a brief analysis of the employer's alternatives when its employees no longer hold the physical abilities to perform the duties provided for by their employment contracts. There are several situations in which the Italian regulatory text for safety in the workplace (Legislative Decree No. 81/2008) requires the competent company doctor to carry out medical examinations on employees to assess their physical capabilities and, consequently, their suitability to perform the activities set out in their employment contract. For instance, the competent doctor shall assess the employee's state of health before the established starting date to ascertain that the involved employee is physically capable of performing the assigned activities. Furthermore, the law provides for a preliminary medical examination for employees returning to the workplace (or, in any case, going back to perform working activities) after a sick leave period that lasted for at least sixty days; or before a substantial change to the nature of new tasks and duties assigned to employees, to obtain confirmation that their health condition is compatible with the efforts thus required. Provided that certain conditions are met, the employer may dismiss the employees who are found to be unfit to work. More specifically, this may happen if the outcome of the medical examination shows the incompatibility between the employee's physical capabilities and the nature of the tasks assigned under the employment contract. However, the nature of such a dismissal may vary depending on the relevant circumstances, as it could lead to identifying it as a dismissal for objective justification or, in other cases, for just cause. More specifically, dismissals for objectively justified reasons are due to an undeniable impediment to the regular operation of the company's business. This happens as well when employees are found to be unfit to perform the same tasks previously assigned to them, although remaining physically capable of executing other types of working activities; in such cases, the dismissal is fairly served there are no different job positions – even relating to a lower classification – that the employer could assign to these employees to avoid such an event. In this context, pursuant to Article 3 of Law No. 604/1966, the employer to terminate the employment relationship has to justify such a decision, also declaring the impossibility of profitably assigning the employee to other positions that may be vacant and compatible with his current state of health; therefore, the latter will be entitled to the notice period contractually set. Differently from the above, the main cause of the contract is lost when the competent doctor assesses the involved employee's psychophysical condition as so severe as to make it impossible for the employee to resume any work activity. This will lead to the automatic resolution of the employment contract, which cannot be prevented by the employer’s or the employee’s will. Consequently, in such a scenario integrating a just cause of dismissal, the regime pursuant to Article 2119 of the Italian Civil Code will apply, under which the employee will not be granted any right to receive the notice period nor the relevant indemnity.
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