The Construction IndustryThe Construction IndustryMedical Adjudication, Medical Medical Adjudication, Medical

Surveillance, and the LawSurveillance, and the Law

Dr Greg KewSpecialist in Occupational Medicine- South African Society of Occupational Medicine- Elixir Organisational Health

Who/what is SASOM?Who/what is SASOM?

““SSouth outh AAfrican frican SSociety of ociety of OOccupational ccupational MMedicine”edicine”

Official subgroup of the SA Medical Assoc.Official subgroup of the SA Medical Assoc. Association of doctors with an interest in Association of doctors with an interest in

occupational medicineoccupational medicine About 400 members (about 250 are active)About 400 members (about 250 are active) National executive (meets quarterly)National executive (meets quarterly) Regional branches (Natal, Inland, Cape)Regional branches (Natal, Inland, Cape)

SASOM’s MissionSASOM’s Mission

To promote, protect and enhance the health To promote, protect and enhance the health of the working population of South Africa.of the working population of South Africa.

To further all aspects of occupational health To further all aspects of occupational health in South Africa.in South Africa.

To be the guardian for ethical and medical To be the guardian for ethical and medical standards of Occupational Medicine.standards of Occupational Medicine.

To be the professional information resource To be the professional information resource on occupational health matters.on occupational health matters.

PreamblePreamble

Construction work is a dangerous Construction work is a dangerous businessbusiness

Which calls for regulation & controlWhich calls for regulation & control

soso SASOM & SASOHN are delighted to SASOM & SASOHN are delighted to

make any contribution to reduce the risks, make any contribution to reduce the risks, and improve the way in which regulation is and improve the way in which regulation is implemented.implemented.

OverviewOverview

The RisksThe Risks The RegulationsThe Regulations The Issues with The Issues with

CertificationCertification The Way ForwardThe Way Forward

HOW HAZARDOUS IS THE HOW HAZARDOUS IS THE CONSTRUCTION INDUSTRY?CONSTRUCTION INDUSTRY?

So ....So ....

Compensation Commissioner StatsCompensation Commissioner StatsT

op t

en!!

Top

fiv

e!!

Severity StatisticsSeverity Statistics

0.3%

0.7%

0.9%

Occupational DiseasesOccupational Diseases

Occupational DiseasesOccupational Diseases

Comparison of OCD between Comparison of OCD between Occupations in ConstructionOccupations in Construction

Take home messageTake home message

High rate of occupational diseaseHigh rate of occupational disease Probably very under-reportedProbably very under-reported

Noise Induced Hearing LossNoise Induced Hearing Loss Silicosis / Asbestosis / lung cancerSilicosis / Asbestosis / lung cancer ErgonomicsErgonomics Heat / ColdHeat / Cold ChemicalsChemicals

Hence the importance of a competent medical Hence the importance of a competent medical examination (certificate of fitness)!examination (certificate of fitness)!

THE CONSTRUCTION THE CONSTRUCTION REGULATIONSREGULATIONS

Key features of theKey features of the

The Regulations – Occupational The Regulations – Occupational Health AspectsHealth Aspects

promulgated on promulgated on 18 July 200318 July 2003 employers are obliged to ensure that employees, in employers are obliged to ensure that employees, in

certain occupations, are in possession of certain occupations, are in possession of medical medical certificates of fitnesscertificates of fitness Employees on supported or suspended platforms Employees on supported or suspended platforms (15)(12)(a)(15)(12)(a) Crane operators Crane operators (20)(g)(20)(g) Operators of all construction vehicles and mobile plants Operators of all construction vehicles and mobile plants (21)(1)(21)(1)

(d)(i)(d)(i)

Under the Under the Fall Protection PlanFall Protection Plan The employer is required to ensure there is a The employer is required to ensure there is a processprocess for for

evaluating the physical & psychological fitness to work at evaluating the physical & psychological fitness to work at elevated positions elevated positions CRCR(8)(2)(b)(8)(2)(b)

Medical Certificate of Fitness?Medical Certificate of Fitness?

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

The new draft regulationsThe new draft regulations

The new draft regulationsThe new draft regulations

7

The new draft regulationsThe new draft regulations

8

15

The proposed certificateThe proposed certificate

The issues with the certificationThe issues with the certification

Did the legislator mean a Did the legislator mean a doctordoctor or a or a nursenurse?? Who should determine fitness for those who Who should determine fitness for those who

work in “work in “Fall-Risk PositionsFall-Risk Positions” (Reg 8)?” (Reg 8)? Must the person who provides the certification Must the person who provides the certification

personally conduct personally conduct the medical tests?the medical tests? How are minimum How are minimum standards of fitness standards of fitness

standardised?standardised? Psychological FitnessPsychological Fitness? – it is assumed this will ? – it is assumed this will

go.go.

DID THE LEGISLATOR ACTUALLY DID THE LEGISLATOR ACTUALLY MEAN A MEAN A DOCTORDOCTOR OR A OR A NURSENURSE??

So ....So ....

Why this question?Why this question?

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

Other equivalent safety-sensitive Other equivalent safety-sensitive fitness Certificationsfitness Certifications

Mining IndustryMining Industry Mines Health and Safety Act - Mines Health and Safety Act - OMPOMP

Transport IndustryTransport Industry National Road Traffic Act – National Road Traffic Act – medical doctormedical doctor

Others:Others: OHASA: Diving Regs - OHASA: Diving Regs - medical doctormedical doctor Aviation, Maritime, Trains, etc. – Aviation, Maritime, Trains, etc. – medical medical

doctordoctor

So it seems appropriate that highly “safety-So it seems appropriate that highly “safety-sensitive” positionssensitive” positions

Such as ..Such as .. Employees on supported or suspended Employees on supported or suspended

platforms platforms (15)(12)(a)(15)(12)(a) Crane operators Crane operators (20)(g)(20)(g) Operators of all construction vehicles and Operators of all construction vehicles and

mobile plants mobile plants (21)(1)(d)(i)(21)(1)(d)(i)

are certified by a medical practitioner, rather are certified by a medical practitioner, rather than a nurse.than a nurse.

CONSTRUCTION REGULATION 8 CONSTRUCTION REGULATION 8 (FALL PROTECTION)(FALL PROTECTION)

What about ...What about ...

Construction Regulation 8 (Fall Protection)Construction Regulation 8 (Fall Protection)

Construction Regulation 8 (Fall Protection)Construction Regulation 8 (Fall Protection)

DebateDebate:: Does this require a “medical certificate”?Does this require a “medical certificate”? Can the construction company get away Can the construction company get away

with using a with using a screening questionnaire screening questionnaire administered by a supervisoradministered by a supervisor to determine to determine “physical and psychological fitness”?“physical and psychological fitness”?

If so, does this carry a risk in terms of the If so, does this carry a risk in terms of the EEA (“medical testing”)?EEA (“medical testing”)?

Clearly this questionnaire constitutes a “medical test”

Employment Equity Act(Definitions)

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

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

COGP - Integration with Human COGP - Integration with Human Resource PoliciesResource Policies

COGP - Integration with Human COGP - Integration with Human Resource PoliciesResource Policies

COGP - Integration with Human COGP - Integration with Human Resource PoliciesResource Policies

Construction Regulation 8 (Fall Protection)Construction Regulation 8 (Fall Protection)

Probably Probably doesdoes warrant a certificate of warrant a certificate of fitnessfitness

Probably should Probably should ONLY ONLY be conducted by be conducted by someone who someone who isis medically trained medically trained

MEDICALLY TRAINED?MEDICALLY TRAINED?But what do we mean by ...But what do we mean by ...

Just when you thought you had figured it all Just when you thought you had figured it all out...out...

Certain certifications are issued by an Certain certifications are issued by an OHNP (nurse)OHNP (nurse)

... and ...... and ...

others are issued by an others are issued by an OMP (doctor)OMP (doctor)..

Not all Occupational Health Nurse Not all Occupational Health Nurse Practitioners are trained to the minimum Practitioners are trained to the minimum

SANC standard!SANC standard!

Being Being qualifiedqualified as an OHNP does not as an OHNP does not automatically infer automatically infer competencecompetence in doing in doing medical examinations.medical examinations.

Being Being competentcompetent in conducting medical in conducting medical assessments does not automatically infer assessments does not automatically infer authorisation to do so authorisation to do so independentlyindependently (OH (OH nurses functioning independently in mobile nurses functioning independently in mobile units, etc.)units, etc.)

OHNP’s are possibly OHNP’s are possibly not allowed not allowed to conduct to conduct examinations and certification examinations and certification

independentlyindependently!!

Only authorised to conduct examinations if;Only authorised to conduct examinations if; CompetentCompetent (trained & experienced) (trained & experienced) Functioning within a “Functioning within a “health service health service

designated by the Director Generaldesignated by the Director General”, ”, functioning under the authorisation of a functioning under the authorisation of a medical practitionermedical practitioner, and meeting certain , and meeting certain conditionsconditions! !

(section 56 of the Nursing Act)(section 56 of the Nursing Act)

Take home message regarding OH nursesTake home message regarding OH nurses

Receiving top priority by SASOHN and Receiving top priority by SASOHN and SASOMSASOM

Legal advice is currently being actively Legal advice is currently being actively engagedengaged

A written position paper will be published A written position paper will be published as soon as possibleas soon as possible

In the meantime... watch this space!In the meantime... watch this space!

YOU HAVE NOT PERSONALLY YOU HAVE NOT PERSONALLY EXAMINED THE EMPLOYEE?EXAMINED THE EMPLOYEE?

Can you certify if ...Can you certify if ...

Medical Certification without personal Medical Certification without personal examinationexamination

Why ask?Why ask?

Too few OMPs in remote areas.Too few OMPs in remote areas. Cost burdenCost burden

The Ruling from the HPCSAThe Ruling from the HPCSA

Take home messageTake home message

It is deemed unacceptabe for anyone to It is deemed unacceptabe for anyone to issue a medical certification without having issue a medical certification without having personally examined the patient / personally examined the patient / employee.employee.

ButBut Representation is being made by SASOM Representation is being made by SASOM

& SASOHN to this effect, based on a team & SASOHN to this effect, based on a team approach where nurse & doctor function as approach where nurse & doctor function as a working unit.a working unit.

THE WAY FORWARDTHE WAY FORWARDProposals for ...Proposals for ...

Fitness Certification: The Way ForwardFitness Certification: The Way Forward

Consider the “Consider the “Red TicketRed Ticket” concept:” concept: The certification is issued by an The certification is issued by an accreditedaccredited

medical examiner,medical examiner, to the to the individualindividual, in his/her personal capacity,, in his/her personal capacity, through a mechanism through a mechanism endorsed by the endorsed by the

industry,industry, thereby enabling thereby enabling industry-wide validity industry-wide validity for the for the

full 12-month periodfull 12-month period..

Team Approach – Nurse Team Approach – Nurse NOTNOT independent independent

Occupational Medicine PractitionerOccupational Medicine Practitioner Designs the program, sets the minimum standardsDesigns the program, sets the minimum standards Ensures a supervisory relationship is established Ensures a supervisory relationship is established

with OHN, including written examination protocols.with OHN, including written examination protocols. Assumes responsibility for the actions of the OHNAssumes responsibility for the actions of the OHN Examines & certifies the workers in safety-sensitive Examines & certifies the workers in safety-sensitive

jobs (as per current reg’s)jobs (as per current reg’s)

Occupational Health Nurse PractitionerOccupational Health Nurse Practitioner Functions only within designated health servicesFunctions only within designated health services Examines & certifies the workers in less safety-Examines & certifies the workers in less safety-

sensitive jobs (as per current reg’s)sensitive jobs (as per current reg’s)

Team Approach – Nurse Team Approach – Nurse IS IS independentindependent

Occupational Medicine PractitionerOccupational Medicine Practitioner Examines & certifies the workers in safety-Examines & certifies the workers in safety-

sensitive jobs (as per current reg’s)sensitive jobs (as per current reg’s) Examines & certifies the workers referred by the Examines & certifies the workers referred by the

OHN, for opinionOHN, for opinion

Occupational Health Nurse PractitionerOccupational Health Nurse Practitioner Examines & certifies the workers in all the jobs not Examines & certifies the workers in all the jobs not

specified to be certified by an OMP.specified to be certified by an OMP.

Somebody (?SASOM/SASOHN)Somebody (?SASOM/SASOHN) Formulates a minimum framework by which the Formulates a minimum framework by which the

fitness to work program should be implementedfitness to work program should be implemented Sets the minimum standards of fitnessSets the minimum standards of fitness

Important thoughtsImportant thoughts

Are we covering Are we covering allall relevant relevant occupationsoccupations?? Eg. Maintenance work at height, NOT on Eg. Maintenance work at height, NOT on

suspended platforms (riggers, crane maintenance suspended platforms (riggers, crane maintenance work, etc.)work, etc.)

Are we able to ensure that those declared Are we able to ensure that those declared “Fit”, but who have medical conditions “Fit”, but who have medical conditions controlled on medications, controlled on medications, stay fit stay fit till the next till the next examination?examination?

Remember the Remember the other regulations other regulations (noise, (noise, chemicals (incl dust), lead, etc.chemicals (incl dust), lead, etc.

Fitness Certification: The Way ForwardFitness Certification: The Way Forward

Work to be done Work to be done by a number of role players ...by a number of role players ...

SASOM/SASOHN (and HPCSA/SANC) are SASOM/SASOHN (and HPCSA/SANC) are willing to engage on:willing to engage on: Role clarity of the doctors & nursesRole clarity of the doctors & nurses Minimum Standards of Fitness of the JobsMinimum Standards of Fitness of the Jobs Practical application of the process (12-month Practical application of the process (12-month

“Red Ticket”)“Red Ticket”)

Questions

End

EndEndQuestionsQuestions

Occupational Health Practitioner? Occupational Health Practitioner?

Occupational Health & Safety Act:Occupational Health & Safety Act:

'occupational health practitioner''occupational health practitioner' means an means an occupational medicine practitioneroccupational medicine practitioner oror a person a person who holds a who holds a qualification in occupational healthqualification in occupational health recognized as such by the recognized as such by the South African Medical South African Medical and Dental Counciland Dental Council as referred to in the Medical, as referred to in the Medical, Dental and Supplementary Health Service Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974), or the Professions Act, 1974 (Act 56 of 1974), or the South African Nursing CouncilSouth African Nursing Council as referred to in as referred to in the Nursing Act, 1978 (Act 50 of 1978); the Nursing Act, 1978 (Act 50 of 1978);

Occupational medicine Occupational medicine practitioner?practitioner?

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

How high is “high”?How high is “high”?

"scaffold" "scaffold" means any temporary elevated means any temporary elevated platform and supporting structure used for platform and supporting structure used for providing access to and supporting workmen or providing access to and supporting workmen or materials or both;materials or both;

"suspended scaffold" "suspended scaffold" means a working means a working platform suspended from supports by means of platform suspended from supports by means of one or more separate ropes from each support;one or more separate ropes from each support;

3(1)(b)(iii) 3(1)(b)(iii) includes working at a height includes working at a height greater greater than 3 meters above groundthan 3 meters above ground or a landing. or a landing.

The HCS RegulationsThe HCS Regulations

7(a)7(a) that an initial health evaluation is carried that an initial health evaluation is carried out by an out by an occupational health practitioneroccupational health practitioner immediately before or within 14 days after a immediately before or within 14 days after a person commences employment, where any person commences employment, where any exposure exists or may exist, which comprises-exposure exists or may exist, which comprises-

(i)(i) an evaluation of the employee's medical and an evaluation of the employee's medical and occupational history;occupational history;

(ii) a physical examination; and(ii) a physical examination; and(iii) any other essential examination which in the (iii) any other essential examination which in the

opinion of the opinion of the occupational health practitioneroccupational health practitioner is is desirable in order to enable the practitioner to do desirable in order to enable the practitioner to do a proper evaluation;a proper evaluation;

The HCS RegulationsThe HCS Regulations

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

Medically capable of

performing the tasks required

To the required standard

(quality & effectiveness)

Without undue risk

(self or others)

Quality (eg. vision, dexterity)

Effectiveness (eg. strength, endurance, flexibility)

Can function in the working conditions associated with

the job

Can work in heat, dust, chemicals, etc.

Th

e “I

nh

eren

t re

qu

irem

ents

of

the

Job

” What does “Fit to Work” mean?What does “Fit to Work” mean?

COGP - Integration with Human COGP - Integration with Human Resource PoliciesResource Policies

PSYCHOLOGICAL FITNESS?PSYCHOLOGICAL FITNESS?What is meant by ...What is meant by ...

Psychological Fitness?Psychological Fitness?

The intent of the legislator:The intent of the legislator: employees should be in a sound state of employees should be in a sound state of

mind, appropriate to the level of responsibility mind, appropriate to the level of responsibility of the tasks at handof the tasks at hand

The intention was NOT:The intention was NOT: A detailed psychological assessmentA detailed psychological assessment Certification by a qualified psychologistCertification by a qualified psychologist

The Situation – Psychological FitnessThe Situation – Psychological Fitness

Wide variations in interpretation, with variations in Wide variations in interpretation, with variations in applicationapplication Some still using Psychologists or other tests such as the Some still using Psychologists or other tests such as the

“Dover Test”“Dover Test” Some just using Nurses to provide ALL Fitness to Work Some just using Nurses to provide ALL Fitness to Work

certification certification Some doing nothingSome doing nothing

Even some DOL inspectors (and Risk Consultants!) Even some DOL inspectors (and Risk Consultants!) are doing nothing!are doing nothing!

This statement will be removed from the new This statement will be removed from the new construction regulationsconstruction regulations

Comparison of OCD between Comparison of OCD between Construction & other industriesConstruction & other industries