Check it outOn 1 Dec 2002 in Personnel Today Comments are closed. Previous Article Next Article Arepre-employment health examinations a waste of OHPs’ precious time or acornerstone of their practice? The appropriate use and legal implications ofsuch examinations are investigated, by Kit Artus Pre-employment examinations are viewed by some as the keystone ofoccupational health practice, but are they? The routine examination of thegeneral population, which is generally fit and reasonably healthy, can take upan inordinate amount of energy and deflect time from proactive work designed toprotect and promote the health and safety of the majority of the employedstaff. It may be argued, however, that a pre-employment health test establishesbaseline data and provides an opportunity to promote occupational health andsafety. Presenting occupational health topics at an induction programme, andoffering management and risk-focused training, demonstrates that occupationalhealth is proactive and helps ensure the speciality reaches the majority ofstaff and not just the minority of applicants. Self-administered questionnaires A pre-employment self-administered questionnaire, which is scrutinised by aqualified occupational health doctor or nurse (OHP) for the majority of cases,is sufficient. It can be argued that for low-risk environments and occupations,a targeted health declaration is sufficient. The designed and focused healthdeclarations can be scrutinised by a trained reviewer with the facility torefer ‘negative responses’ or final selection applicants, if it is companypolicy, to an OHP. This first level health declaration for low risk occupationsreleases time and scarce resources for proactive and promotional occupationalhealth work. The HSG’s Understanding health surveillance at work1 recommends that morecomplex investigations need to be undertaken only in the followingcircumstances: – The job requires the worker to enter a hazardous environment to which heor she has not previously been exposed (eg compressed air, deep sea diving,ionising radiation, lead, etc) – The work presents specific hazards to the community at large (egtransport, healthcare, catering, etc) – The work demands high standards of physical or mental fitness (eg police,fire service, etc) – Industries where there is a statutory obligation to examine employeesmedically before they start work (eg work with compressed air, work involvingexposure to ionising radiation and lead, etc) Pre-employment examinations involve an assessment of the applicant’s healthin relation to the risks of the proposed job. The OHP assesses and identifiesspecifically job-related defects (previous high exposure to a dangeroussubstance, allergy to a substance, etc). One main driver for pre-employment examinations is that employers arereluctant to appoint applicants if their general health is such that they arelikely to be off sick for substantial periods. However, completing a generalpre-employment examination (not risk driven) is no guarantee that it willpredict, reduce or prevent absence or identify high-risk applicants. Employersrecognise that established employees may fall ill, but they do not want to takeon ‘bad risks’. In reality, in a time of high unemployment, employers may be asselective as they wish. Does an applicant have to answer the questions? Apart from statutory restrictions, an employer is free to pose questions orrequire examinations. There is no obligation on a job applicant to volunteerinformation (unlike an insurance application), therefore any health declarationor occupational health questionnaire should be relevant to the job risks,demonstrating the practical need for relevant occupational health job riskassessments. The applicant is free to refuse to answer, but this would be ahollow freedom if they ended up not getting the job. Issues of confidentiality The legal implications of not keeping client information confidential couldbe: – Breach of the Data Protection Act – Breach of contract – implied duty of mutual trust and confidence – Possible misrepresentation under the Misrepresentation Act 1976 – Breach of professional ethics When an employer engages or retains an OHP to provide occupational health-care to those gainfully employed, the question of confidentiality of health andmedical records and to whom the records belong, can be contentious. Areas ofpossible contention between the employer and the occupational healthprofessional are: – Management wanting detailed information held on the records or details ofany diagnoses The objective for the OHP must be to provide sufficient information for themanager to manage safely – eg estimated period of absence from work, capabilityon return, likelihood of recurrence, significance of the DisabilityDiscrimination Act, etc. – The employer’s legal representatives can be challenging When do the records become disclosable between the employer and employee’slegal representatives? The employer’s legal representative can argue that therecords are the property of the company; therefore they have a right of access.However, the records are the property of the company but the information isnot. The employee can refuse consent for either party to have the records andthen it is up to the courts to subpoena those records, or the employee canprovide written and informed consent for their legal representative to have therecords or a copy. Once this is done the information is disclosable and thelegal advisers will deal with the issue. All occupational health information, obtained on an individual in thecontext of a doctor or nurse-patient relationship, is regarded as the propertyof the individual and is confidential. An OHP should take care about divulgingsuch information to third parties, as Dorothy Ferguson makes clear in herarticle in the September issue of Occupational Health. There is also an obligation on the OHP to maintain all records in confidenceand to ensure other people who are not entitled to do so do not access them. Legal gymnastics Where an employee or job applicant is required to undergo an examination,either under a statutory requirement or because of company policy, this shouldbe referred to in the contract of employment. The relationship between the employer and the OHP is challenging. The OHPhas no contract with the employees of the company but the work and servicesprovided may have a profound effect. The OHP may also be responsible foradvising the company and the public on the hazards and risks of the product/s –an area of potential ethical conflict. The common law may deem employers negligent if they do not assess and imposereasonable standards of health and fitness, mental as well as physical. In Kapfunde v Abbey National plc and Dr Daniels, 19982 the Court of Appealheld that an independent OH physician does not owe a duty of care to a jobapplicant when carrying out a pre-employment assessment of a completed medicalquestionnaire, even if it was reasonably foreseeable that the job applicantwould suffer financial loss if a negligent medical assessment was carried outdue to insufficient proximity. “The existence of a duty of care not to make a negligent mis-statement,and the identity of the persons to whom that duty is owed depends upon thecircumstances. A duty of care will generally be owed to the person to whom thestatement is made and who relies on the report. In the case of a medical reportthis is normally the person who commissions the report, not the subject ofit.” The Court of Appeal held that the OHP is in much the same position as a psychiatristor social worker retained by a local authority to give advice on whether achild should be taken into care. No duty of care is owed to the child evenwhere the provisions of that advice involve interviewing and examining thechild. In Baker v Kaye, 1997, a year earlier, the High Court held an OHP did owe aduty of care to a job applicant, as there was sufficient proximity between theparties to give rise to a duty of care. The judgment in Baker v Kaye wasoverturned by the Kapfunde v Abbey National plc case. OH risk assessments Added to the above challenges are the requirements for compliance withhealth and safety legislation. As stated in the Management of Health and Safetyat Work Regulations 1999, Regulation 6 – Health Surveillance3: “Every employer shall ensure that the employees are provided withappropriate health surveillance having regard to the risks to their health andsafety, which are identified by the assessment.” In essence the completed risk assessments will identify circumstances inwhich health surveillance, including pre-employment examination, is required byspecific health and safety regulations (eg Control of Substances Hazardous toHealth 1999, etc). Health surveillance should be introduced where theassessment shows the following criteria apply: – An identifiable disease or adverse health condition related to the work –biological, chemical, ergonomic, physical and/or psychological – Valid techniques are available to detect indications of the disease orcondition – A reasonable likelihood that the disease or condition may occur under theparticular conditions of work – Health surveillance is likely to further the protection of the health ofthe employees covered – Identification and protection of individuals at increased risk – thevulnerable, the pregnant and young workers The complete five-step approach to general risk assessment can be adapted toassess OH risks. In essence there are three basic steps to a health surveillance needsassessment (see tables): – What are the identified health risks? – What controls are in place? – What are the OH issues? Conclusion The prudent employer should ensure that all applicants are informed ofidentified OH and safety risks at the time of interview. With OH needs assessments,a clear management strategy should be designed to direct scarce resources intoprotecting the health of the majority of staff. OHPs need to continue tochallenge the accepted traditions and move from the ‘comfort zone’ ofpre-employment assessments to risk management concepts. Kit Artus, Operations Director, Cheviot Artus Plc References 1. HSG 61 Understanding health surveillance at work 2. OH Law. Diana Kloss. ISBN 0-632-04263 3. Management of Health and Safety at Work Regulations 1999 Related posts:No related photos.
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