The Construction Industry Medical Adjudication, Medical Surveillance, and the Law Dr Greg Kew Specialist in Occupational Medicine - South African Society of Occupational Medicine - Elixir Organisational Health

Who/what is SASOM? “South African Society of Occupational Medicine” Official subgroup of the SA Medical Assoc. Association of doctors with an interest in occupational medicine About 400 members (about 250 are active) National executive (meets quarterly) Regional branches (Natal, Inland, Cape)

SASOM’s Mission To promote, protect and enhance the health of the working population of South Africa. To further all aspects of occupational health in South Africa. To be the guardian for ethical and medical standards of Occupational Medicine. To be the professional information resource on occupational health matters.

Preamble Construction work is a dangerous business Which calls for regulation & control so SASOM & SASOHN are delighted to make any contribution to reduce the risks, and improve the way in which regulation is implemented.

Overview The Risks The Regulations The Issues with Certification The Way Forward

How hazardous is the construction industry? So .... How hazardous is the construction industry?

Compensation Commissioner Stats Top ten!! Top five!!

Severity Statistics 0.3% 0.7% 0.9%

Occupational Diseases

Occupational Diseases

Comparison of OCD between Occupations in Construction

Take home message High rate of occupational disease Probably very under-reported Noise Induced Hearing Loss Silicosis / Asbestosis / lung cancer Ergonomics Heat / Cold Chemicals Hence the importance of a competent medical examination (certificate of fitness)!

The Construction Regulations Key features of the The Construction Regulations

The Regulations – Occupational Health Aspects promulgated on 18 July 2003 employers are obliged to ensure that employees, in certain occupations, are in possession of medical certificates of fitness Employees on supported or suspended platforms (15)(12)(a) Crane operators (20)(g) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) Under the Fall Protection Plan The employer is required to ensure there is a process for evaluating the physical & psychological fitness to work at elevated positions CR(8)(2)(b)

Medical Certificate of Fitness? "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa;

The new draft regulations

The new draft regulations 7

The new draft regulations 8 15

The proposed certificate

The issues with the certification Did the legislator mean a doctor or a nurse? Who should determine fitness for those who work in “Fall-Risk Positions” (Reg 8)? Must the person who provides the certification personally conduct the medical tests? How are minimum standards of fitness standardised? Psychological Fitness? – it is assumed this will go.

Did the legislator actually mean a doctor or a nurse? So .... Did the legislator actually mean a doctor or a nurse?

Why this question? "medical certificate of fitness" means a certificate valid for one year issued by an occupational health practitioner, issued in terms of these regulations, whom shall be registered with the Health Professions Council of South Africa;

Other equivalent safety-sensitive fitness Certifications Mining Industry Mines Health and Safety Act - OMP Transport Industry National Road Traffic Act – medical doctor Others: OHASA: Diving Regs - medical doctor Aviation, Maritime, Trains, etc. – medical doctor

So it seems appropriate that highly “safety-sensitive” positions Such as .. Employees on supported or suspended platforms (15)(12)(a) Crane operators (20)(g) Operators of all construction vehicles and mobile plants (21)(1)(d)(i) are certified by a medical practitioner, rather than a nurse.

Construction Regulation 8 (Fall Protection) What about ... Construction Regulation 8 (Fall Protection)

Construction Regulation 8 (Fall Protection)

Construction Regulation 8 (Fall Protection) Debate: Does this require a “medical certificate”? Can the construction company get away with using a screening questionnaire administered by a supervisor to determine “physical and psychological fitness”? If so, does this carry a risk in terms of the EEA (“medical testing”)?

Employment Equity Act (Definitions) Clearly this questionnaire constitutes a “medical test”

What does the Employment Equity Act have to say about “Medical Tests”?

Employment Equity Act (Chapter II, Prohibition of Unfair Discrimination)

COGP - Integration with Human Resource Policies

COGP - Integration with Human Resource Policies

COGP - Integration with Human Resource Policies

Construction Regulation 8 (Fall Protection) Probably does warrant a certificate of fitness Probably should ONLY be conducted by someone who is medically trained

But what do we mean by ... Medically Trained?

Just when you thought you had figured it all out Just when you thought you had figured it all out... Certain certifications are issued by an OHNP (nurse) ... and ... others are issued by an OMP (doctor).

Not all Occupational Health Nurse Practitioners are trained to the minimum SANC standard! Being qualified as an OHNP does not automatically infer competence in doing medical examinations. Being competent in conducting medical assessments does not automatically infer authorisation to do so independently (OH nurses functioning independently in mobile units, etc.)

(section 56 of the Nursing Act) OHNP’s are possibly not allowed to conduct examinations and certification independently! Only authorised to conduct examinations if; Competent (trained & experienced) Functioning within a “health service designated by the Director General”, functioning under the authorisation of a medical practitioner, and meeting certain conditions! (section 56 of the Nursing Act)

Take home message regarding OH nurses Receiving top priority by SASOHN and SASOM Legal advice is currently being actively engaged A written position paper will be published as soon as possible In the meantime... watch this space!

you have not personally examined the employee? Can you certify if ... you have not personally examined the employee?

Medical Certification without personal examination Why ask? Too few OMPs in remote areas. Cost burden

The Ruling from the HPCSA

Take home message It is deemed unacceptabe for anyone to issue a medical certification without having personally examined the patient / employee. But Representation is being made by SASOM & SASOHN to this effect, based on a team approach where nurse & doctor function as a working unit.

Proposals for ... The Way Forward

Fitness Certification: The Way Forward Consider the “Red Ticket” concept: The certification is issued by an accredited medical examiner, to the individual, in his/her personal capacity, through a mechanism endorsed by the industry, thereby enabling industry-wide validity for the full 12-month period.

Team Approach – Nurse NOT independent Occupational Medicine Practitioner Designs the program, sets the minimum standards Ensures a supervisory relationship is established with OHN, including written examination protocols. Assumes responsibility for the actions of the OHN Examines & certifies the workers in safety-sensitive jobs (as per current reg’s) Occupational Health Nurse Practitioner Functions only within designated health services Examines & certifies the workers in less safety-sensitive jobs (as per current reg’s)

Team Approach – Nurse IS independent Occupational Medicine Practitioner Examines & certifies the workers in safety-sensitive jobs (as per current reg’s) Examines & certifies the workers referred by the OHN, for opinion Occupational Health Nurse Practitioner Examines & certifies the workers in all the jobs not specified to be certified by an OMP. Somebody (?SASOM/SASOHN) Formulates a minimum framework by which the fitness to work program should be implemented Sets the minimum standards of fitness

Important thoughts Are we covering all relevant occupations? Eg. Maintenance work at height, NOT on suspended platforms (riggers, crane maintenance work, etc.) Are we able to ensure that those declared “Fit”, but who have medical conditions controlled on medications, stay fit till the next examination? Remember the other regulations (noise, chemicals (incl dust), lead, etc.

Fitness Certification: The Way Forward Work to be done by a number of role players ... SASOM/SASOHN (and HPCSA/SANC) are willing to engage on: Role clarity of the doctors & nurses Minimum Standards of Fitness of the Jobs Practical application of the process (12-month “Red Ticket”)

End Questions

End Questions

Occupational Health Practitioner? Occupational Health & Safety Act: 'occupational health practitioner' means an occupational medicine practitioner or a person who holds a qualification in occupational health recognized as such by the South African Medical and Dental Council as referred to in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), or the South African Nursing Council as referred to in the Nursing Act, 1978 (Act 50 of 1978);

Occupational medicine practitioner? 'occupational medicine practitioner' means a medical practitioner as defined in the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), who holds a qualification in occupational medicine or an equivalent qualification which qualification or equivalent is recognized as such by the South African Medical and Dental Council referred to in the said Act;

How high is “high”? "scaffold" means any temporary elevated platform and supporting structure used for providing access to and supporting workmen or materials or both; "suspended scaffold" means a working platform suspended from supports by means of one or more separate ropes from each support; 3(1)(b)(iii) includes working at a height greater than 3 meters above ground or a landing.

The HCS Regulations 7(a) that an initial health evaluation is carried out by an occupational health practitioner immediately before or within 14 days after a person commences employment, where any exposure exists or may exist, which comprises- (i) an evaluation of the employee's medical and occupational history; (ii) a physical examination; and (iii) any other essential examination which in the opinion of the occupational health practitioner is desirable in order to enable the practitioner to do a proper evaluation;

The HCS Regulations 7(3) An employer shall not permit an employee who has been certified unfit for work by an occupational medicine practitioner to work in a workplace or part of a workplace in which he or she would be exposed: Provided that the relevant employee may be permitted to return to work which will expose him or her if he or she is certified fit for that work beforehand by an occupational medicine practitioner.

What does “Fit to Work” mean? To the required standard (quality & effectiveness) Quality (eg. vision, dexterity) Medically capable of performing the tasks required Effectiveness (eg. strength, endurance, flexibility) The “Inherent requirements of the Job” Without undue risk (self or others) Can function in the working conditions associated with the job Can work in heat, dust, chemicals, etc.

COGP - Integration with Human Resource Policies

Psychological FITNESS? What is meant by ... Psychological FITNESS?

Psychological Fitness? The intent of the legislator: employees should be in a sound state of mind, appropriate to the level of responsibility of the tasks at hand The intention was NOT: A detailed psychological assessment Certification by a qualified psychologist

The Situation – Psychological Fitness Wide variations in interpretation, with variations in application Some still using Psychologists or other tests such as the “Dover Test” Some just using Nurses to provide ALL Fitness to Work certification Some doing nothing Even some DOL inspectors (and Risk Consultants!) are doing nothing! This statement will be removed from the new construction regulations

Comparison of OCD between Construction & other industries