Health Surveillance Legal Requirements Employers’ Duties - The BESA
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Friday, May 17, 2019

Health Surveillance Legal Requirements Employers’ Duties

When reading this guidance remember that health surveillance is a particular legal requirement and should not be confused with:

  • activities to monitor health where the effects from work are strongly suspected but cannot be established
  • workplace wellbeing checks, such as promoting healthy living
  • fitness to work examinations e.g. fitness to dive, operate cranes, forklift trucks or health assessments requested by night employees

 

Under the Health and Safety at Work, etc. Act 1974, employers have a general duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees.

Under the Management of Health and Safety at Work Regulations 1999, employers must assess the risks to the health of their employees presented by all aspects of work.

  • Before they employ a young person (under the age of 18), employers must undertake a specific risk assessment in relation to the health risks the young person will be exposed to in the course of his or her work.
  • If more than five people are employed, the significant findings of the risk assessment must be recorded.
  • Following the risk assessments, employers must take appropriate steps to reduce the risks to the health of their employees as far as is reasonably practicable, i.e. implement appropriate risk control measures.
  • Employers must inform their employees, and others affected by employees’ work, of the findings of the risk assessment and the steps being taken to reduce the risks to their health at work.
  • Employers must provide suitable training and information to their employees to enable them to comply with the risk control measures being implemented.
  • Employers must monitor the implementation of risk control measures and manage non-compliance to reduce the risks to employee health to the lowest practicable level.
  • Employers must provide appropriate health surveillance if the risk assessment identifies such a need.
  • Employers must act on the significant findings of any health surveillance and reduce the risks to employee health from exposure to health hazards.
  • Employers must appoint one or more competent persons to assist them in carrying out health risk assessments and health surveillance.

Statutory Health Surveillance Requirements

The provision of health surveillance, sometimes termed medical surveillance, is a requirement of the following regulations:

  • The Management of Health and Safety at Work Regulations 1999 (MHSWR) require that every employer shall ensure that employees are provided with such health surveillance as is appropriate to the risks to their health and safety, as identified by the risk assessment.

The regulations do not specify for how long the records of health surveillance are to be retained.

The Management of Health and Safety at Work Regulations were amended in October 2003 to remove the civil liability exclusions in the 1999 Regulations and allow:

  • Employees to claim damages from their employer in a civil action, where they suffer injury or illness as a result of the employer breaching the 1999 Regulations.
  • Employers to bring actions against employees for breaches of their duties under the 1999 Regulations.

The Control of Substances Hazardous to Health Regulations 2002 (COSHH) (as amended)

Require that where it is appropriate for the protection of the health of employees who are, or are liable to be, exposed to a substance hazardous to health, the employer shall ensure that such employees are under suitable health surveillance.

  • Health surveillance is to be applied to specified processes, such as chrome plating, and to substances where there is a reasonable likelihood of adverse health effects and where there are valid techniques for detecting such effects.
  • The records of such health surveillance are to be retained in a suitable form for at least 40 years after the date of the last entry.

The Control of Lead at Work Regulations 2002

Require that every employee who is, or is liable to be, exposed to lead shall be under suitable medical supervision if the exposure is likely to be significant or if the relevant doctor so certifies.

  • The regulations specify both the frequency at which medical surveillance tests should be carried out and the types of tests required.
  • As with COSHH, the records of medical surveillance are to be kept for at least 40 years from the date of the last entry.

The Control of Asbestos Regulations 2012

Require that each employee who is exposed to asbestos is under adequate medical surveillance.

  • The regulations specify both the frequency at which medical examinations should be carried out and the types of tests to be required.
  • As with the COSHH and the Lead Regulations, the records of medical surveillance should be kept for at least 40 years from the date of last entry.

The Ionising Radiations Regulations 2017

Require that employees who belong to any of the following categories are under adequate medical surveillance by an employment medical advisor or appointed doctor.

  • Classified persons and persons who the employer intends to classify
  • Employees who have been overexposed and are not classified persons
  • Employees who are engaged in work with ionising radiation subject to conditions imposed by an employment medical advisor or appointed doctor (preventing them from working at all or under conditions with ionising radiation).
  • Health records for these employees should be kept for 50 years from the date of the last entry.

Also relevant are the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (REPPIR).

The Work in Compressed Air Regulations 1996

  • Every employer shall ensure that each of his employees who works in compressed air is under adequate medical surveillance by an appointed doctor or employment medical adviser;
  • Where an employee is to be assigned to work in compressed air, the medical surveillance shall be commenced before he is so assigned.
  • A health record, containing particulars approved by the Executive, is made and maintained in respect of each of his employees who is engaged in work in compressed air; and
  • The record or a copy thereof is kept in a suitable form for at least 40 years from the date of the last entry made in it; and
  • As soon as is reasonably practicable after an employee of his has ceased to work on any project, a copy of the relevant part or parts of the record made under sub-paragraph (a) of this regulation is provided to that employee.

 

Please see the following below, for direct links to the current legislation:

 

  • Health and Safety at Work etc. Act 1974

http://www.legislation.gov.uk/ukpga/1974/37/contents

  • The Management of Health and Safety at Work Regulations 1999

http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

  • The Control of Substances Hazardous to Health Regulations 2002

http://www.legislation.gov.uk/uksi/2002/2677/regulation/7/made

  • The Control of Lead at Work Regulations 2002

http://www.legislation.gov.uk/uksi/2002/2676/contents/made

  • The Control of Asbestos Regulations 2012

http://www.legislation.gov.uk/uksi/2012/632/contents/made

  • The Ionising Radiations Regulations 2017

http://www.legislation.gov.uk/uksi/2017/1075/contents/made

  • The Work in Compressed Air Regulations 1996

http://www.legislation.gov.uk/uksi/1996/1656/regulation/10/made

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