Dental hygiene is an increasingly popular and used service. It is a service that it is certainly related to health, as will be elaborated further, but which is not covered by public health insurance. Since January 2016, Všeobecná zdravotno pojišťovna has been providing its policyholders with a dental hygiene allowance of up to one thousand crowns, but after ten weeks it had to end this campaign, as around sixty thousand of its policyholders had used it since the beginning of the year, and all allocated funds had been used up.[1].
Legal regulation and dental hygiene
Are we looking for the services of dental hygienists for preventive health reasons or for aesthetic reasons? Whether dental hygiene is a medical dental prevention or only (or mostly) an aesthetic process is also important from the point of view of labor law, as it can be questionable whether the employee has the right for the employer to grant him time off to undergo dental hygiene during working hours and, if so, whether it is leave with or without pay.
According to the provisions of § 199 Act No. 262/2006 Coll., Labor Code, as amended (hereinafter referred to as the "Labor Code"), the employer is obliged to provide the employee with work leave and, in certain cases, compensation for wages in situations where the employee cannot perform work due to so-called other important personal obstacles at work concerning his person, than which are listed in § 191 of the Labor Code. The scope of these other obstacles at work on the part of the employee is determined by Government Regulation No. 590/2006 Coll., which establishes the scope and scope of other important personal obstacles at work, as amended (hereinafter referred to as the "regulation").
The first of the obstacles to work on the part of the employee, which is indicated by the mentioned government regulation, is examination or treatment in a medical facility. Paid leave from work or salary will be provided for the necessary period of time if several clearly defined conditions are met:
examination or treatment could not be performed outside working hours;
the examination or treatment was carried out in a medical facility that is in contractual relationship with the health insurance company, which the employee chose;
this medical facility is also the closest facility (to the residence or workplace of the employee) capable of providing the necessary care (hereinafter referred to as "the nearest medical facility").
The employee's right to work leave
It is, of course, a question whether the employer is able to find out whether or not a specific treatment could be carried out outside working hours. Some employers force their employees to apply for sick leave if they want to see a doctor during working hours. forcing employees to choose a health care provider who practices outside normal working hours. This procedure is not in accordance with the law. European Social Charter, which the Czech Republic ratified in December 1999, provides in Article 11: "Everyone has the right to use any measures that will enable them to achieve the best possible state of health."[2] This provision of the European Social Charter is then related to the provisions of § 28 paragraph 3 letter b) Act No. 372/2011 Coll., on health services and conditions for their provision (hereinafter referred to as the "Health Services Act"), which directly enshrines the patient's right to choose a health service provider or medical facility that meets the patient's health needs. The choice of a medical facility or doctor the employer cannot influence, and if such a doctor does not prescribe outside of the employee's working hours, the employee has the right (if the other two conditions mentioned above and 2 and 3 are met) to work leave with full wage compensation.
By law, an employee has the right to work leave only for as long as necessary. The assessment of whether it will be a necessary time or not is influenced both by the length of the examination or treatment, as well as by the above-mentioned conditions ad 2 and 3 (especially the distance of the facility or doctor from the residence or workplace of the employee).
However, the regulation also remembers the situation when the chosen doctor does not meet the condition of the nearest medical facility. If the examination or treatment was carried out in a different than the nearest medical facility, work leave will be granted for the absolutely necessary time (i.e. to the full extent necessary to visit this medical facility, even though it is not the nearest medical facility). However, compensation for wages or salaries is due at most for the period determined as if the employee had visited a medical facility meeting all 3 of the above conditions at the same time. For this purpose, the employer should therefore search for the nearest corresponding medical facility and the absolutely necessary time for which the wage compensation is due, and adjust them according to the time required for the journey there and back[3]. From practice, we are not aware of a case where an employer would implement such a time reduction.
The employee has the obligation to notify the employer of the planned visit to the doctor in advance, and after completing it, he must properly prove that he actually visited the doctor and how long he spent with him. These facts are usually proven by a certificate issued by a medical facility or a doctor.
Is dental hygiene an examination/treatment?
If we return to the original question, we must answer whether a visit to a dental hygienist can meet the aforementioned conditions of the regulation. The legal system of the Czech Republic does not define the concepts of examination or treatment. If we use the common or generally perceived interpretation of these expressions, we can examination understood as a certain procedure leading to establishing a diagnosis, finding out the causes of health disorders or the general state of health (preventive examinations). Treatment is then a concrete solution to the identified problem.
In the provisions of § 17, paragraph 3 of Act No. 96/2004 Coll., on the conditions for obtaining and recognizing competence to perform non-medical health professions and to perform activities related to the provision of health care and on the amendment of some related laws (hereinafter referred to as the "Non-medical Health Professions Act") ) defines what is included in the performance of the profession of a dental hygienist: "The performance of the profession of a dental hygienist is considered educational activity within the framework of dental prevention. In addition, the dental hygienist, based on the dentist's indication, provides preventive care in the dental hygiene section and, under the professional supervision of the dentist, assists in the provision of preventive, therapeutic and diagnostic care in the dentistry section."[4] Dental hygiene can thus be perceived as an examination (detection of the condition of the teeth and gums) as well as a treatment (removal of possible future and current causes of tooth decay, gingivitis, periodontitis, etc.). The purpose of dental hygiene is to prevent the occurrence of diseases in the oral cavity. The first condition for the conclusion that a visit to a dental hygienist during working hours can be an obstacle to work with wage compensation in the sense of the regulation is thus fulfilled.
Dental hygiene must then be provided in a medical facility, which is in a contractual relationship with the health insurance company chosen by the employee. A medical facility is defined in § 4, paragraph 1 of the Act on Health Services as: "premises intended for the provision of health services.” The provisions of Section 2, Paragraph 2 of the Act on Health Services define what the law understands by health services. It is mainly about:provision of health care according to this Act by health care workers, as well as activities performed by other professionals, if these activities are performed in direct connection with the provision of health care.” The Non-Medical Health Professions Act directly states that a dental hygienist is a healthcare worker.
Furthermore, it is necessary to assess whether provides health care or operates activities performed in direct connection with the provision of health care. The Health Services Act defines health care as:
"a) a set of activities and measures carried out by natural persons for the purpose
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prevention, detection and elimination of disease, defect or medical condition (hereinafter referred to as "disease"),
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maintaining, restoring or improving health and functional status,
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maintaining and prolonging life and alleviating suffering,
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help with reproduction and childbirth,
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health assessment,
b) preventive, diagnostic, curative, medical rehabilitation, nursing or other health services performed by health workers (hereinafter referred to as "health services") for the purpose of letter a)."[5]
Considering the above, it can be concluded that a dental hygienist provides medical care in a medical facility.
The last condition set by the regulation is the contractual relationship of the medical facility with the health insurance company of a specific employee. The employee is therefore legally entitled to day off only if they visit a facility that "has a contractual relationship with the employee's chosen health insurance company." As mentioned above, dental hygiene is not one of the services covered by public health insurance [6]. However, the wording of the regulation does not say that it must be an examination or treatment that is to be paid for by the health insurance company, but the existence of a contractual relationship between the facility in which dental hygiene is provided and the relevant health insurance company is sufficient. The Regulation no longer provides an answer to the question of how the employer should proceed in the event that the contractual relationship is not given in the given case. By interpreting the language of the relevant provision of the regulation, it can be inferred that, in contrast to the provision of examination or treatment in a medical facility other than the nearest one, in such a case the wage compensation would not be provided. However, we dare to say that this was not the purpose of the legislation.
záver
In the event that an employee visits a medical facility for the purpose of dental hygiene without a contractual relationship with the relevant health insurance company, the employer should, in addition to work leave, provide the employee with wage compensation for the time necessary to visit the nearest (assessed from the workplace or residence of the employee) medical facility, which is in relation to the relevant health insurance company.
Source: EPRAO DIGITAL April 2016
Mgr. Lucie Špičková, Attorney
The team of the Vych & Partners, s.r.o. law office
[1] www.vzp.cz – Record dental hygiene: the limit was increased twice, but it is exhausted after 10 weeks
[2] Art. 11 of the European Social Charter
[3] Point 1 letter b) annex to Government Regulation No. 590/2006 Coll., which establishes the scope and scope of other important personal obstacles at work
[4] § 17 paragraph 3 of the Act on non-medical health professions
[5] § 2 paragraph 4 of Act No. 372/2011 Coll., on health services and conditions for their provision
[6] Prophylactic control of oral hygiene and removal of tartar is a paid service only within the scope of the activities of a dentist - doctor
