1. 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

2. 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)

3. 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.

4. 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.

11. Overview • The Risks • The Regulations • The Issues with Certification • The Way Forward

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

13. Compensation Commissioner Stats Top five!! Top ten!!

14. Severity Statistics 0.3% 0.7% 0.9%

15. Occupational Diseases

16. Occupational Diseases

17. Comparison of OCD between Occupations in Construction

18. 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)!

19. Key features of the The Construction Regulations

20. 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)

21. 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;

22. The new draft regulations

23. The new draft regulations 7

24. The new draft regulations 8 15

25. The proposed certificate

26. 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.

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

28. 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;

29. 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

30. 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.

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

32. Construction Regulation 8 (Fall Protection)

33. 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”)?

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

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

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

38. COGP - Integration with Human Resource Policies

39. COGP - Integration with Human Resource Policies

40. COGP - Integration with Human Resource Policies

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

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

43. 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).

44. 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.)

45. 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)

46. 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!

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

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

49. The Ruling from the HPCSA

50. 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.