Fatty liver, high blood sugar... These physical examination indicators have become an obstacle to job hunting
Experts said that the autonomy of enterprises in employment has boundaries, does not endanger public health and safety, does not affect labor, and must not be refused
Reporter Liu Youting
In the process of job hunting, many job seekers were rejected for employment due to "unqualified physical examination". In fact, if the employee's physical condition does not endanger public health and safety and does not affect the work, the employer shall not refuse to hire the employee on the grounds that there is a problem with the physical examination.
"Our company hereby apologizes to you in accordance with the effective judgment of the court!" Not long ago, "Shenzhen Business Daily" published an apology statement issued by a network technology company in Shenzhen. In the statement, the company said that during the recruitment process, Chen Zhengjin (pseudonym) was "treated differently and violated the principle of equal employment" based on physical conditions unrelated to the job requirements.
On Nov. 11, Mr. Chen told the Workers' Daily that he had accepted the company's apology and had found a new job.
From passing the resume screening, to going through multiple rounds of written interviews, and receiving the offer of employment, only to be rejected after the entry physical examination... The reporter learned from the interview that many job seekers have similar experiences to Chen Zhengjin. In response to the employer's refusal to hire a job seeker on the grounds that he or she "failed to pass the physical examination", the professional said that on the premise of not endangering public health and safety, if the physical condition of the employee does not affect the provision of labor, the employer shall not refuse to hire the employee on this ground.
The company refused to admit a job applicant due to abnormal sinus rhythm and was ordered to publish an apology
Chen Zhengjin is a person with a physical disability caused by the sequelae of polio. In August 2021, he submitted his resume to a network technology company in Shenzhen and applied for the position of operation manager. After passing two rounds of interviews, Chen Zhengjin received an offer for the position of operations supervisor.
Subsequently, according to the company's requirements, Chen Zhengjin went to the hospital for an entry physical examination. After receiving the physical examination report, he went to the company to go through the entry procedures. However, the company refused to go through the entry procedures for the medical examination on the grounds that "regular review is required" in the medical examination report and the company is unwilling to accept "candidates with high risk factors".
Chen Zhengjin believes that the company refused to hire him because of muscle atrophy in his left lower limb. The company said that it had met Chen Zhengjin during the interview stage and did not care about his height. Considering that he was applying for a position that required business trips and often had to deal with work at night, and the physical examination report showed sinus rhythm abnormalities and needed regular check-ups, the company was worried that he would not be able to bear it, so he felt that he was at risk.
Chen Zhengjin believed that he had successfully passed the assessment, received the offer letter, and his ability to work for the position had been clearly recognized, and the company's reason for refusing his entry was unfounded, which was employment discrimination, so he filed a lawsuit with the court, requesting the company to publicly publish an apology and compensate for economic losses.
The Shenzhen Longgang District People's Court held that there are no laws and regulations in China that stipulate the position of "operation supervisor", which is a type of work prohibited for patients with sinus bradycardia, and the physical examination report submitted by Chen Zhengjin also stated that "most bradycardia has no important clinical significance". The court held that the company violated the principle of equal employment by treating Chen Zhengjin differently based on physical conditions unrelated to the job requirements, and should publicly publish an apology and pay a total of 1,6000 yuan for mental damages, lost work expenses and moving expenses.
It does not endanger public health and safety, does not affect labor, and must not be refused
"The old epilepsy scar left by the illness, the physical examination report shows that 'pleural adhesion is considered', and the doctor issued a certificate saying that there is no impact, but it is still rejected" "I was rejected because I failed the physical examination, but I don't know the specific reason"... The reporter found on social platforms that many job seekers shared their experiences of being rejected due to "unqualified physical examinations", some due to "fatty liver" and "high blood sugar", some due to "high aminotransferases", and some did not know which examination was rejected because of which unqualified examination.
So, can an employer refuse to hire a job seeker on the grounds of so-called "medical failure"?
"Since the ability to work is directly related to the health status of the worker, the employer can conduct a health check on the job seeker when recruiting." Shen Jianfeng, director of the Academic Committee of the Law School of the China Institute of Labor Relations, said bluntly that the recruiter has the right to refuse to hire a worker if he finds that he has a disease that affects the labor force. However, if the physical condition does not affect the provision of work, or does not fall under the circumstances in which the law clearly discriminates against the employee on the basis of such condition, the employee shall not be refused employment on this ground.
Talking about the latter situation, Shen Jianfeng introduced that the Employment Promotion Law makes it clear that employers shall not refuse to hire personnel on the grounds that they are carriers of infectious diseases. However, carriers of infectious diseases who have been medically identified as carriers of infectious diseases must not engage in work that is likely to cause the spread of infectious diseases that is prohibited by laws, administrative regulations, or the provisions of the administrative department of health under the State Council before they are cured or the suspicion of infection is eliminated.
"At present, China's law only stipulates the health of some personnel engaged in specific positions, and such positions with health requirements are basically related to public health and safety, and the scope of employees in specific positions is restricted from the public interest." Yi Xiaobo, a judge at the Longgang District People's Court in Shenzhen, said, "However, it should be noted that outside of this situation, there is no situation in which a worker is not allowed to work because of any kind of disease." ”
"If an employer refuses to hire a worker on the grounds that there is a problem with the employee's physical examination after issuing the employment notice, there should be a clear legal basis." Yi Xiaobo believes that the employer's unreasonable discrimination, exclusion or restriction based on the applicant's physical condition violates the employee's right to equal employment.
There are boundaries to the autonomy of enterprises in employment, which must comply with the provisions of the law
"Employers have different requirements for physical examinations. Most units require a 'medical examination'. Ms. Zhang, who has many years of experience in human resources, told reporters that when the work intensity of the recruitment position is large, the employer will have higher requirements for the physical fitness of employees, and correspondingly have higher requirements for physical examination.
Not long ago, a physical examination report caused heated discussions because it wrote "sluggish expression and slow response" and "low IQ, and the employer considers it as appropriate".
Can the medical examination center advise the employer whether to hire the employee? Yi Xiaobo believes that the physical examination report should be an accurate and standardized medical report made by the doctor after examining the physical condition of the worker. If the medical examination center directly recommends whether the employer should hire the employee in the physical examination report, it is beyond the scope of medical diagnosis and treatment, which will adversely affect the employee's employment rights and even cause employment discrimination, which is also a violation of the law.
"It is the autonomy of the employer to set admission conditions for job applicants." Tan Zicheng, a lawyer at Guangdong Penghao Law Firm, said that the exercise of employment autonomy is not without boundaries, and some employers arbitrarily set admission conditions for general positions without special requirements, which is obviously beyond the scope of reasonableness and necessity.
Shen Jianfeng also pointed out that employers enjoy the right to employment autonomy, but they must not violate the law to discriminate in employment, and should not apply standards that are not related to the performance of labor contracts, and exclude workers from participating in employment competition.
"Providing evidence in employment discrimination litigation is a major challenge for workers. Employers generally do not inform employees of the reasons for not hiring. Shen Jianfeng suggested that workers should pay attention to preserving and collecting evidence before taking measures to protect their rights. (Workers' Daily)