The opinion was issued after the OFPPT asked the Ombudsman whether such a mechanism would be compatible with the rules governing sick leave.
The institution said there is no legal obstacle in principle to introducing medical counter-checks, but stressed that their legitimacy depends on how they are designed and implemented.
The mechanism must serve a legitimate purpose, such as ensuring the proper functioning of public services, while complying with the principles of legality, proportionality and objectivity.
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The Ombudsman’s opinion sets out 11 practical recommendations grouped into four areas: the regulatory framework, procedural requirements, protection of rights, and monitoring and evaluation.
On the regulatory side, the mechanism should have a clear legal or regulatory basis defining how counter-medical checks are conducted and the conditions under which they can be used.
The medical assessment itself should be carried out by an independent doctor, with a clear separation between the doctor’s medical judgment and any subsequent administrative decision.
The opinion also places strong emphasis on medical confidentiality, privacy and the protection of health data. Information obtained during a medical check should be handled within the limits permitted by law.
Employees must also be informed of the procedure and given an opportunity to provide explanations and exercise their right to challenge or contest a decision before any administrative or financial consequences are imposed.
The Ombudsman stressed that the findings of a counter-medical examination cannot automatically produce legal or administrative consequences. Any action affecting an employee’s status or pay must have a legal basis and follow the required procedural safeguards.
The institution also called for medical counter-checks to be incorporated into a wider policy for managing health-related absences.
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That policy should include prevention, analysis of the causes of absenteeism, improvements to working conditions and efforts to strengthen trust between employees and management.
The aim, according to the opinion, should therefore be to make medical monitoring an instrument of good governance and sound management, rather than simply a tool for control or punishment.
