What is a health surveillance medical? Health surveillance is a routine workplace medical assessment that is repeated at regular intervals. It's usually needed when an employee is exposed to hazards that could affect their health. e.g. noise, dust, chemicals, vibration.
The results are compared over time allowing an overview of the workers’ health and the ability to spot trends.
Statutory medicals vs best practice
There are generally two types of health surveillance medical:
Statutory medicals required by law
Risk assessment driven medicals
Statutory medicals are required for certain high-hazard work and require an assessment carried out by a doctor appointed by the HSE.
Employees with exposure to the following hazards will most likely require statutory medical surveillance:
Substances listed in Section 6 of the Control of Substances Hazardous to Health Regulations 2002
It is a legal requirement for employers to carry out health surveillance for employees exposed to these hazards.
Risk assessment driven medicals
The Health & Safety Executive (HSE) will expect all businesses to carry out a health and safety risk assessment as part of an employer's obligation to protect employees and others from harm.
If your risk assessment identifies a significant risk to employee health that cannot be removed completely, then it's likely that health surveillance will be appropriate. Such risks might include:
This list is not exhaustive.
Health surveillance protects both the employer and the employee from the adverse effects of work-related ill health.
It is in both the employer's and employee's best interests to attend health surveillance medicals routinely because deteriorating health can be spotted early and measures put in place to rectify or halt the problem getting worse.
Are employees legally required to attend health surveillance medicals?
The short answer is generally yes, but like all things there are points to consider.
Section 7 of the Health & Safety at Work Act 1974 states that it is the duty of every employee while at work - "(a) to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and (b) as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with."
By refusing to attend a statutory health surveillance medical, employees are not co-operating with their employer to enable them to fulfil their statutory duty. They are therefore committing an offence and may be liable to prosecution by the HSE.
Similarly, for those health surveillance medicals that are driven by risk assessment, it could be argued that an employee's refusal to attend shows a failure to take reasonable care of themselves. It is important to note, however, that although employees have a duty to co-operate, there is also a duty on employers to make sure their employees understand those duties.
Educating workers about the reasons and expectations of health surveillance medicals and the implications of failing to attend is an important step in the process. Employers also have a duty to consult employees on matters related to health and safety, either through union representatives, elected representatives or directly. "The most powerful tool to encourage employees to attend health surveillance medicals is education"
What to do if an employee refuses to attend a health surveillance medical
Because of the myriad job roles and risks found in the working world, there is no blanket solution when an employee refuses to attend a health surveillance medical. However, there are some questions that it would be helpful to ask yourself to help you find an appropriate solution:
Why is the employee refusing to attend? - Is their reason legitimate, for example is there a medical reason they cannot undergo health surveillance medicals? In which case a referral to occupational health could help you find a solution. Is it just that they cannot make one date in particular but could attend at another time? It’s worth noting that employers should bear the cost of health surveillance and employees have a right to attend during their paid working hours.
Does the employee's work pose a risk to their health? - The answer to this question is probably yes if you have already included them in your health surveillance programme, but it is worth double checking. In some instances, an employee might have been moved to a new role but not been taken off the health surveillance schedule - or a new process implemented that has removed a risk since their last medical assessment.
How great is that risk? - What is the likelihood of their health being adversely affected by their work? If it is a statutory medical, the likelihood is probably high, but if your health surveillance is precautionary, the risk may be lower.
Would the employee's potential ill health pose a risk to only themselves or others as well? - If a worker's hearing could be affected by their work, for example, would that reduced hearing only affect them, or could it also affect the safety of the people they work with. This is helpful in assessing the impact of their refusal to attend.
What are the risks of not taking part in the health surveillance programme? Think of different scenarios - ill health is one risk, but what further risks could that pose to the employee, their co-workers, and the wider business. A worst case scenario could be noise induced hearing loss causing an employee to not hear a warning shout and suffer a severe workplace injury as a result.
Can those risks be mitigated in other ways? - Can the employee be moved to another department where that risk is not present? Or can you prevent them from working in a particular area sustainably?
Have you done everything that is reasonably practicable to get the employee to attend? Does the employee understand the reasons behind the medical assessment and the fact that it benefits both them and their employee and helps to keep them safe? Do they understand what the possible consequences of non-attendance could be? Have you offered alternative dates or discussed other ways you could help facilitate their attendance?
It would be wise to seek guidance from an experienced health and safety or occupational health professional if you are concerned about assessing the risk of non attendance. They will be able to offer guidance about what an appropriate solution might be.
If an employee continues to refuse to attend a health surveillance medical, some possible actions may include:
Ask the employee to sign a disclaimer to confirm they understand the risks of not attending routine health surveillance and the legal and contractual implications. This may be a temporary measure whilst you investigate next steps and should be used with caution. A disclaimer alone will not protect you as the employer from HSE action - you need to advise the employee that in signing a disclaimer, they will be moved away from that job role and re-deployed or, if no other work available, may be subject to suspension or even dismissal.
Seek an opinion from occupational health to determine if there is any medical reason why the employee cannot attend. This would be useful if the employee is citing health related reasons for their refusal but is unlikely to be helpful if their refusal stems from another reason. If health is the reason, an occupational health report can help you understand your options, for example, if reasonable adjustments could be made to enable the employee to attend.
Discipline the employee in line with your company disciplinary policy to help them understand the gravity of the issue and give them an opportunity to reconsider.
Redeploy the employee to a new job role / department / duties to remove them from the risk - if reasonably practicable and an alternative is available.
Suspend the employee in line with your company policies if there is no opportunity for redeployment. If the risk is related to a one off project, they may be able to return once that is complete. If not, this will remove them from the risk whilst you plan the next step.
Dismiss the employee on the grounds of failure to co-operate with their employer to enable them to fulfil their statutory duty, or failure to take reasonable care of themselves. You may consider getting legal advice before going down this route to make sure you have fulfilled all your obligations.
Getting advice from an experienced health and safety or employment law specialist would be advisable if you are at all unsure or if there is a chance the situation may become letigious.
How to encourage employees to attend health surveillance medicals
At All Health Matters we often find that the most refusals come from companies where health surveillance is new and not already embedded in their culture. It stands to reason that if medical surveillance is considered the norm, then people are more likely to go along with it and feel comfortable that there is no hidden agenda because they've seen it in practice.
Where health surveillance is introduced for the first time however, or perhaps when new workers join a company and have not experienced the process before, it can be met with suspicion. Some workers perceive it as an intrusion or believe it is a way to get rid of them and fear for their jobs.
That's why it is so important to be clear about the reasons for implementing a health surveillance programme, and the benefits to employees. You can communicate this through multiple way - posters, videos, toolbox talks - you could even ask your occupational health provider to come and do a Q&A or a presentation.
You might also consider appointing some health and safety champions within your workforce to promote health and safety practices and be an additional source of information for workers.
It's clear that the most powerful tool to encourage employees to attend health surveillance medicals is education.
We can provide resources to help you promote and demystify health surveillance including posters, flyers, toolbox talks, FAQs and videos - contact us for more information.
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