Posted By MT
I would use Reg 11 of COSHH to explain WHY there is a duty on the company to carry out health surveillance. Sometimes people are wary about what information will be gathered about them and what will be passed to their employers, therefore I would also assure them that they have free access to the results of the surveillance and tell them who will be able to see the results.

Often a bit of information to quell people's suspicions goes a long way. Many are scared that if something untoward is found, they will lose their jobs.

If you're still stuck, you could always use the good old Health and Safety at Work Act Section 7, which compels them to comply with your request.

Posted By holmezy
Brian,

just gone through a similar exercise....

My advice would be to not spend too much time quoting regulations etc to the employees concerned. By all means explain that due to the nature of the process, there is a need under COSHH to carry out health surveillance, but stress that you are doing it for their benefit, that you want to ensure that they stay fit and healthy, and that you are a ?"caring employer". Obviously, you aren't doing this to "weed out" the unwanted, so make sure that they understand that as well. Try and find a presentation, or explain to them the possible health effects, both acute and chronic, of the substances being used or generated and explain that you need to protect them etc. They obviously dont have to agree, (even though the regs state co operation etc) but you need to be seen to be trying to do the right things and have it all documented that Joe Bloggs has refused, despite all your efforts etc.

IF you do resort to quoting regulations and laws etc and say that "we are doing it because we have to" then be prepared for the shutters to come down!!

Good luck.


Holmezy

Posted By Garry Mcglaid
Hi folks,

Some advice here would be greatly appreciated.

I'm going through a similiar thing with our employees just now. At the moment I'm just investigating the Health surveillance required resulting from our risk assessments. From my understanding the materials and substances being used do require health surveillance, if our guys refuse to undertake regular checks, where does that leave the company and the duty of care we owe them? and what option does it leave the company in regards to allowing them to carry on working unchecked with potentially hazardous dusts, solvents, and paints?

Posted By John Murgatroyd
"Confidentiality.

Employers have no right to know the results of medical examinations of their workers, including tests for HIV antibodies. The results of any medical examination and how it bears on a worker's work performance will only be divulged to an employer by the doctor if consent is given by the worker (see note 4 on the Access to Medical Reports Act 1988). "

Carry-on reading:

http://www.acas.org.uk/media/pdf/n/9/B11_1.pdf

Posted By Garry Mcglaid
John,

The company has covered all control measures in regards to respiratory equipment, ppe, lev system, and spray booth extraction, i have just taken the opinion that i would also like to implement ongoing health surveillance as an additional measure to protect our guys.
I never mentioned PPE in my comment, my response was regarding Regulation 11 of COSHH and the terminology "where it is appropriate for the protection of the health of his employees who are, or are liable to be, exposed to a substance hazardous to health,the employer SHALL ensure that such employees are under suitable health surveillance. My thoughts, and thats all they where, just wondered about the implications of my risk assessments recognising a need for health surveillance, yet we as a company allowing employees who refuse to comply, continue to work in these conditions.
I would also like to add we do not have the option of moving employees to different departments.

Posted By M J Matthews
Hi

As a result of the health surveillance if the employee is found to be suffering from a RIDDOR notifiable disease the employer must have to be informed by the Doctor to enble them to ensure that the comply with the Regs

Mick M

Posted By steve e ashton
Confidentiality of medical information can be an emotive subject.

AMRA '88 states:
"It shall be the right of an individual to have access, in accordance with the provisions of this Act, to any medical report relating to the individual which is to be, or has been, supplied by a medical practitioner for employment purposes or insurance purposes."

Except in certain circumstances - Reg 7 details.

That means the EmplyEE 'normally' (NOT ALWAYS) has a right of access to the report.(And the employee can refuse permission for the doctor to be approached or insist on adding comments to it.)

HOWEVER - in the definitions provided in the regs: "medical report, in the case of an individual, means a report relating to the physical or mental health of the individual prepared by a medical practitioner who is or has been responsible for the clinical care of the individual." (I can't highlight that last bit in bold...)

"care" includes examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment.

I believe these definitions were lifted from a codification the traditional medico / legal duty of patient confidentiality.

In the case of referrals to an employer's occupational health service, the examination is for the purposes of determining the employees suitability for the work, and the adequacy of control measures in place at that work. It is not (necessarily) 'in connection with any medical treatment'.

So AMRA does not appear to apply and the employee may have no 'rights' under the Act. The situation depends very much on how the Surveillance / OH program has been established.

If the Company drug / alcohol / health surveillance program is contained within the employment contract then anyone refusing the test / examination is liable to dismissal for breach of contract. Anyone accepting an employment contract as a track worker for example - or agreeing to the company’s drugs and alcohol policy - is deemed to have given 'consent' to the release of the reports produced. Although many companies still (unnecessarily in my opinion) include a requirement for the employee to sign to agree to the release of the report.


Steve

Posted By Karen Coomer
I provide health surveillance and so have followed this thread with interest. As well as the statutory obligation (COSHH, Reg5 of the MHSW)the employer can also be held civilly liable, the leading case on this is wright v Dunlop Co. 1972.

In most places I have worked it is part of the employment contract to have HS, if identified by a RA. Pre-employment screening would be part of this for a baseline measurement. As for the medical records there are usually two. The health record which includes personal details, historical record of jobs involving exposure to substances requiring RA and dates and conclusions (fitness to work only - not clinical data) - must be retained for 40yrs and the employer must let the employee see it if they want to. There are then the confidential clinical records which need consent of the individual under the consent to medical records act 1988, to be released, as already discussed.The Data Protection Act - Part 4 will also apply as it is personal, sensitive data.

For occupational asthma guidance note HSE MS 25 is a useful read for guidance on health surveillance and discusses the employee and employer's duties.

Hope that's helpful
Karen

Posted By warderic
HASA 1974; Requirement to co-operate with the employer regarding health and safety