Overview of Health Surveillance I
The Health, Safety and Welfare at Work Act obliges employers to review periodically, employees’ health so that any adverse changes in their health, that may be related to working conditions are identified as soon as possible. The extent of the obligation will depend on the nature of the business of industry and the risks involved.
Risk may manifest itself in accidental injury or in long term so called, occupational injuries. Some processes and industries are notoriously prone to causing particular diseases and occupational conditions. There are mandatory requirements for surveillance in a number of sectors and types of occupation, including those involving night work, shift work, railway safety, radiation, chemical and biological agents.
Employers are obliged to ensure that health surveillance is undertaken which is appropriate to the risks which have been identified in the statutory risk assessment. The surveillance required should be informed by the risk assessment. The requisite surveillance must be implemented.
Overview of Health Surveillance II
Health surveillance, in this context, is a periodic review for the purpose of protecting health and preventing occupational diseases. It is aimed at identifying potential risks and problems as early as possible. Emphasis is placed on health promotion and illness prevention. The duty arises under general and specific health safety and welfare at work legislation.
In addition to the general duty arising from the general duties and the risk assessment, there are specific medical health surveillance obligations in relation to biological agents, chemical agents, ionising agents, manual handling, VDUs, exposure to dangerous substances night shift, night work, noise and pregnant employee’s work.
Where surveillance is provided to or undertaken in relation to employees, their consent is required. Strict data protection obligations apply as health information will usually constitute sensitive personal data. The results of the surveillance must be made available to the employee concerned in most cases.
It may be ultimately a fair ground for dismissal in extreme circumstances if an employee refuses to submit to a medical test. However, the courts will be very reluctant to find it a fair dismissal, unless all other possibilities have been exhausted.
Further Action on foot of Surveillance
The particular regulations dictate what is to happen on foot of health surveillance. It is usually the duty of any occupational healthcare professional under whose responsibility an employee receives health surveillance
- to propose any protective or preventative measures necessary in respect of any individual employee;
- to give access to an employee, upon request by that employee, to his or her own health surveillance records,
- to allow access to individual confidential medical records to a designated occupational medical advisor,
- to take account of the recommendations of an approved code of practice.
Where as a result of health surveillance an employee is found to have an identifiable disease or adverse health effect which is considered by an occupational healthcare professional or occupational medical advisor to arise from occupational circumstances or exposure, the occupational healthcare professional or occupational medical advisor shall inform the employee of the result which relates to him or her personally, including information and advice regarding such health surveillance which he or she should undergo following the end of the exposure, and shall inform the employer of the outcome of the health surveillance.
It is usually the duty of the employer to ensure that, where an employee is subject to health surveillance, the occupational healthcare professional or occupational medical advisor is to make entry in the individual’s health record and has certified to the employer that, in his or her professional opinion, that employee should not be engaged in work which exposes him or her to that substance or that he or she should only be engaged under conditions specified in the record, that the employee is not engaged in such work except in compliance with the conditions, if any, specified in the health record, unless that entry has been cancelled by the responsible health care professional or occupational medical advisor.
Disease / Effect
Where as a result of health surveillance an employee is found to have an identifiable disease or adverse health effect which is considered by an occupational healthcare professional or occupational medical advisor to be the result of occupational circumstances or exposure, the employer shall:
- review the risk assessment made;
- review the measures provided to eliminate or reduce the risk;
- take account of the advice of the occupational healthcare professional or an Inspector in implementing any measures required to eliminate or reduce risk, including the possibility of assigning the affected employee to alternative work where there is no risk of further exposure, and
- arrange continued health surveillance and provide for a review of the health status of any worker who has been similarly exposed and take account of the recommendations of the occupational healthcare professional or an occupational medical advisor regarding further medical examination.
The duty to undertake and act on health surveillance and medical tests also arise, in effect, at common law. An employer has a broad common law duty to protect employees from occupational accidents, illness and diseases. Employers must take action and must ensure that the work environment does not exacerbate the risk to the health, safety and welfare of employees.
Common-law duties effectively place significant obligations on the employer in relation to the health and welfare of employees. The duties may in effect require health surveillance from time to time in particular sectors, where there are known and notorious risks.
Employer liability has been found, and compensation has been awarded, where the employer has failed to use reasonable care to undertake and act on medical checks. Medical surveillance has been held to be increasingly necessary in some sectors, as an employee gets older.
In addition to cases of obvious risk of danger, many of which require surveillance by statute, there are common law duties in respect of known and emerging occupational disorders. This duty applies to physical and to psychological injury. It covers protection from harmful substances, practices and extends to illness arising from stress caused by bullying and harassment.
Regulations may be made for specific sectors or risks, under which employees may be required to undertake health assessments by a medical doctor of their fitness to perform the activity. They may apply to activities involving serious risk to health and safety and welfare. The employee subject to such regulations is obliged to inform the employer of risks and illnesses, diseases suffered. The employer will usually a general duty to take action in response.
Mandatory medical surveillance applies in a number of employments, which entail particular risks. They include
- exposure to certain chemicals
- night workers and shift workers
- exposure to radiation
- certain transport workers
The sector specific mandatory medical surveillance must be made available.
In other cases, sector specific regulations require that surveillance must be made available. The employee must be informed of their availability. This applies, for example, in relation to eye tests under VDU regulations, hearing tests under the noise regulations and vaccination in relation to biological agents.
If an employee is unfit for work, he must inform the employer. This arises as part of his general duties under the legislation. The sector specific regulations specifically require that the employee inform his employer of his unfitness in some particular cases. The medical certification may deem the employee to be temporarily or longer term unfit for his previous role.
Dismissal / Retirement
If the medical surveillance discloses that the employee is unfit to work, a medical practitioner is to notify the employer and employee. Reasons must be given. In certain sectors, the absence of a certificate may make it unlawful for an employee to be retained in that role.
This inability of an employee to work in his previous role may raise difficult issues in terms of dismissal. Unlawfulness (in those few cases where the medical certification is mandatory by law) and incapacity are potentially fair grounds for dismissal. However, there can be no automatic dismissal. At a minimum, questions of fair procedures will arise before any such determination is made, even assuming that there are otherwise grounds for dismissal.
A reassignment, temporary or long term may be required. The movement of an employee to lighter work may be appropriate if this is reasonable in the circumstances. It may be an unfair dismissal, if the employer can reasonably offer lighter work, but refuses to do so. However, the WRC Labour Court may be very reluctant to find a fair dismissal, unless all reasonable possibilities have been exhausted.
Compulsory retirement below conventional retirement ages, based on assumed health grounds, may be inconsistent with antidiscrimination legislation. It may also constitute unfair dismissal.
If the employer has a disability for the purposes of anti-discrimination law, the employer may be obliged to offer reasonable accommodation, provided that this can be done a reasonable cost. See the section in relation to equality in relation to the broad types of conditions and circumstances that can constitute a disability.
The courts have been reluctant to accept a blanket assumption of disability and incapacity to work at a certain age, particularly if that age is relatively young, relative to other jobs.
It may be unlawful to allow the employee to continue in the position concerned. An employer who allows an employee to continue in his previous role, even where it is not a lawful requirement, may incur liability for negligence. If there is a later incident which causes loss or damage, the employer may be liable to the employee or to third parties, where it is attributable to the incapacity.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 22
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella Ch.1
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch.5
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Health and safety at work, 2017 29th edition Author BAMBER, L.,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Author FORLIN, G.
Health and safety at work: European and comparative perspective Author ALES, E., ed.
Health and Safety Law 5th Ed 2005 Stranks
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 3) Regulations 2016 (S.I. No. 370 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) (No. 2) Regulations 2016 (S.I. No. 70 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2016 (S.I. No. 36 of 2016)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2012 (S.I. No. 445 of 2012)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2010 (S.I. No. 176 of 2010)
Safety, Health and Welfare at Work (General Application) (Amendment) Regulations 2007 (S.I. No. 732 of 2007)
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)