Can you ask about a candidate’s state of health in a selection process or is it considered discriminatory?
The regulation for equal treatment and non-discrimination that entered into force on 14 July 2022 reiterated the right to non-discrimination on the grounds provided for in the Constitution and the Workers’ Statute and introduced new grounds (gender expression, illness or health condition, serological status or genetic predisposition to pathologies and disorders, language or socio-economic status).
This new rule prohibits health status from conditioning the selection of a candidate for a job and stipulates that the employer may not ask about the candidate’s health. In fact, it is a very serious administrative offence to ask for personal data in the selection process, so questions about the employee’s state of health, temporary incapacity, ailments or medical reports should be avoided in interviews.
After hiring an employee, the company must offer him/her a medical examination, which is generally voluntary. If the employee accepts the medical examination, the medical services may request certain information to make a diagnosis and the company will only be informed of the result of the examination, without further details. The worker may refuse the medical examination without the need for justification, but the law establishes three cases in which workers may be obliged to undergo the examination:
If it is provided for by a legal provision on some activity of special danger.
When it is essential to evaluate the effects of the working conditions on their health (for example, in a factory where the noise level is high and can affect the hearing capacity of the employees).
When it is necessary to verify whether the worker’s state of health may be a danger to him or herself or to other workers or third parties.
Our professionals will advise you on any question related to selection processes.