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Occupational Medical and the Law

By Yvette Montalbano on 24 October 2016

The information regarding occupational medicals for can be very confusing. Some say yes and others say no. In this article we discuss the legal requirements and the element of risk you face as an employer.

Medicals - the right thing to do

I often get asked by a client or prospective client whether they are required by law to have their employees undergo a medical examination before employing them. The answer to this dilemma is very simply put….YES!

Then the client wants to know if medicals should be done only on those employees that are involved in technical work in workshops, manufacturing plants and construction sites or should medicals be done on all employees? They also want to know if the occupational medical examinations must be done by a specialist or can it be done by a General Practitioner?

According to Gerrit Augustyn, August 18, 2014, who is well known in the OHS industry says that “the Occupational Health and Safety Act 85 of 1993 applies to everyone in South Africa, in industry. The application of the Act is not limited to workshops, manufacturing plants and construction sites. Occupational medicals are equally not limited to those working in workshops, manufacturing plant and construction sites.”

All employers in South Africa have a duty to provide and maintain a working environment free of risk to the health and safety of employees. This includes those individuals that work in an environment where exposure to hazards might be more limited. Gerrit goes on to say that “If one expects everything to be spelled out explicitly in law you must be prepared to sit with your nose in legal text all the time.

Section 8 (1) of the Occupational Health and Safety Act mentioned above set the following requirement:
“General duties of employers to their employees
(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees”.
Section 9 of the Act set the following requirement:

“General duties of employers and self-employed persons to persons other than their employees
(1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety”.

Occupational medicals and our common law

A very important aspect to remember is that of the common law (which is not written law). Common law is recognized by the Constitution of the Republic of South Africa, 108 of 1996. In terms of Common Law it is an employer’s duty to look after the health & safety of his employees.

An employee working as sales representative might not be exposed to the types of hazard that an employee is exposed to in a mechanical workshop. Never the less the employee is exposed to some hazards. Being a sales representative would entail doing a lot of traveling to clients. This means a lot of time in a vehicle requiring a person to be medically fit, both physically and psychologically. The fact that an employee isn’t aware of any medical condition or has not been diagnosed with same does not mean that it does not exist or can later develop.

A security guard working for a security company on a client site in an industrial area where there might be air pollution, a lot of vibration, heat etc. might be exposed to hazards to his/her health.

Occupational medicals are a good way of protecting oneself against any possible legal liability suits. The cost in prevention far out ways the possible consequences of not doing it.

Different types of occupational medicals

It is further important to distinguish between the three types of occupational medicals – the pre-employment, annual occupational medicals and exit medical.
A pre-employment occupational medical does not only involve new employees but also an employee moving from a non-hazardous environment to a hazardous environment. An exit occupational medical also does not apply only to those individuals leaving the company but employees moving from a hazardous to a non-hazardous environment.

The best way of determining the frequency of occupational medicals apart from those instances where legislation specifically prescribes annual medicals is to consult with the Occupational Medical Practitioner.

Who should perform occupational medicals?

This brings us to who is to perform occupational medicals. Only a registered Occupational Medical Practitioner with the Health Professions Council may conduct such medicals. This is a requirement in terms of Section 17 of the Health Professions Act 56 of 1974.

One of the changes brought about in the 2014 Construction Regulations is the specific inclusion of the wording “Occupational Medical Practitioner” under regulation 7 (1) (g). It has always been a requirement to have these medicals done by a person qualified as such. The fact that industry has abused this must be because it was not previously explicitly stated in legislation and thus led to the inclusion in the 2014 regulations.

It is very important also to take note that specific reference to occupational medicals valid for one year has been omitted from the definition of “medical certificate of fitness”. It would be advisable to consult with an occupational health practitioner to receive advice on the frequency of the medicals.

The practitioner must be informed of the type of work to be performed by employees, as well as the hazards to which they might be exposed. Only with this information would the practitioner be able to provide an informed opinion of the frequency of medicals.

Have you seen our other articles relating to Medicals? The links are below.

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