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Posted By Brian Murray
Following Risk assessment of welding and painting activities we have started health surveillance. A few employees have refused screening unless the reasons for doing so are clearly laid out to them in writing, they have been told it is legal requirement of the Company yet are still not convinced.
I can only find reference in COSHH Regs to demonstrate this. Can anyone point me in the right direction please?
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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.
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Posted By Kenneth Patrick
Are you sure you need to do health surveillance?
If so, you can show your people the assessment that there is a specific risk of a health problem and that the surveillance will help to demonstrate if the controls are working.
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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
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Posted By John Murgatroyd
It may well be a company requirement, but they have the right to refuse a medical examination, and if they have one a further right to refuse permission for the medical examiner to divulge to anyone the information so gained.
Not forgetting the necessary confidentiality required and the need to keep the records for forty years or so...
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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?
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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
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Posted By John Murgatroyd
"what option does it leave the company in regards to allowing them to carry on working unchecked with potentially hazardous dusts, solvents, and paints"
surely you're supposed to control the hazards first, before using ppe ?
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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.
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Posted By Dean Cross
John,
Health surveillance is not just for checking up on PPE.
It is to help ensure that all the control measures in place are working sufficiently. e.g enclosure, LEV, management etc.
Dean
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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
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Posted By Clare Gabriel
Actually they do not have a right to refuse. We have taken legal advice on this and dont forget Section 7 of HSWA - where an employer makes a reasonable request. However usually they only refuse as they dont have the information on what is required, where records will be kept, who has access to them, will be kept, worries about secret drug testing etc
Also if the risk assessment identified the need for health surveillance.
With regards to data protection clearly you have a duty with your OH provider to ensure the records are stored under the medical records act (or whatever it is called)
Yes CoSHH is your best bet - but as long as the health surveillance is in line with the risk associated with the employees work then the employer can insist. We have just stood down our first employee who refused surveillance as we cannot deem him fit to work with hazardous substances. Our OH Doctor who is one of the best in the UK has been excellent in assisting us with strong policies.
Actually that is one of the tricks - to have a properly trained OH doctor - with occupational experience, knowledge of industry. so many out ther claim to be OH and have not got a clue. We have had a bad experience!!!
Our HSE inspector was also a huge help getting advice from EMAs on the matter.
I have a standard letter we sent to employees you can have it you want.
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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
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Posted By Brian Murray
F.A.O Claire Gabriel
I would appreciate a copy of your standard letter tel: 01953 453830 for email address
Brian
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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
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Posted By John Murgatroyd
The problem you are having, in trying to assure your employees that the reasons for the hs are for their benefit, are due to many employers using such hs to lose employees with health problems. Many more do not keep the records confidential, assuming that any staff member has right of access.
You can chose which law you want to, at the end of the day if the employee refuses (which they do have a right to do....whatever HSWA and COSHH say) then your recourse is dismissal.
It is quite simple. The employee has a right to refuse, you then have various disciplinary routes to go through, and the employee becomes an ex-employee. And the blame for the distrust is laid firmly at the door of sundry employers, backed-up by the ever present H&S consultancy.
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Posted By warderic
HASA 1974; Requirement to co-operate with the employer regarding health and safety
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Posted By John Murgatroyd
You are clearly missing my point. Many employees will chose to be ex-employees rather than submit to what, in many cases, is a medical fishing expedition. There is NO WAY OTHER THAN DISMISSAL, OR THE THREAT OF, TO MAKE ANYONE TAKE A MEDICAL EXAMINATION OR DISLCLOSE ANY INFORMATION IF THEY DO NOT WANT TO. Further, even if they do take the medical they can simply refuse permission to the medical examiner to disclose.
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