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
 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)
 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.
 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.
 Overview
 The Risks
 The Regulations
 The Issues with
Certification
 The Way Forward
So ....
HOW HAZARDOUS IS THE
CONSTRUCTION INDUSTRY?
 Compensation Commissioner Stats

Top five!!
Top ten!!
Severity Statistics

0.3%

0.7%
0.9%
Occupational Diseases
Occupational Diseases
Comparison of OCD between
Occupations in Construction
 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)!
Key features of the
THE CONSTRUCTION
REGULATIONS
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)
 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;
The new draft regulations
 The new draft regulations

7
 The new draft regulations

15
The proposed certificate
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.
So ....
DID THE LEGISLATOR ACTUALLY
MEAN A DOCTOR OR A NURSE?
 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;
 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
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.
What about ...
CONSTRUCTION REGULATION 8
(FALL PROTECTION)
Construction Regulation 8 (Fall Protection)
 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”)?
 Employment Equity Act
(Definitions)

Clearly this questionnaire constitutes a “medical test”

What does the Employment Equity Act have
to say about “Medical Tests”?
 Employment Equity Act
(Chapter II, Prohibition of Unfair Discrimination)
COGP - Integration with Human
Resource Policies
COGP - Integration with Human
Resource Policies
COGP - Integration with Human
Resource Policies
 Construction Regulation 8 (Fall Protection)

 Probably does warrant a certificate of

fitness
 Probably should ONLY be conducted by
someone who is medically trained
But what do we mean by ...
MEDICALLY TRAINED?
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).
 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.)
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)
 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!

Can you certify if ...
YOU HAVE NOT PERSONALLY
EXAMINED THE EMPLOYEE?
 Medical Certification without personal
examination
Why ask?

 Too few OMPs in remote areas.

 Cost burden
The Ruling from the HPCSA
 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.
Proposals for ...
THE WAY FORWARD
Fitness Certification: The Way Forward

 Consider the “Red Ticket” concept:

 The certification is issued by an accredited
medical examiner,
 to the individual, in his/her personal capacity,
 through a mechanism endorsed by the
industry,
 thereby enabling industry-wide validity for the
full 12-month period.
Team Approach – Nurse NOT independent

 Occupational Medicine Practitioner

 Designs the program, sets the minimum standards
 Ensures a supervisory relationship is established
with OHN, including written examination protocols.
 Assumes responsibility for the actions of the OHN
 Examines & certifies the workers in safety-
sensitive jobs (as per current reg’s)
 Occupational Health Nurse Practitioner
 Functions only within designated health services
 Examines & certifies the workers in less safety-
sensitive jobs (as per current reg’s)
Team Approach – Nurse IS independent
 Occupational Medicine Practitioner
 Examines & certifies the workers in safety-
sensitive jobs (as per current reg’s)
 Examines & certifies the workers referred by the
OHN, for opinion
 Occupational Health Nurse Practitioner
 Examines & certifies the workers in all the jobs not
specified to be certified by an OMP.
 Somebody (?SASOM/SASOHN)
 Formulates a minimum framework by which the
fitness to work program should be implemented
 Sets the minimum standards of fitness
 Important thoughts
 Are we covering all relevant occupations?
 Eg. Maintenance work at height, NOT on
suspended platforms (riggers, crane
maintenance work, etc.)
 Are we able to ensure that those declared
“Fit”, but who have medical conditions
controlled on medications, stay fit till the
next examination?
 Remember the other regulations (noise,
chemicals (incl dust), lead, etc.
Fitness Certification: The Way Forward

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

 SASOM/SASOHN (and HPCSA/SANC) are

willing to engage on:
 Role clarity of the doctors & nurses
 Minimum Standards of Fitness of the Jobs
 Practical application of the process (12-month
“Red Ticket”)
End

Questions
 End
Questions
 Occupational Health Practitioner?
Occupational Health & Safety Act:
'occupational health practitioner' means an
occupational medicine practitioner or a person
who holds a qualification in occupational health
recognized as such by the South African
Medical and Dental Council as referred to in the
Medical, Dental and Supplementary Health
Service Professions Act, 1974 (Act 56 of 1974),
or the South African Nursing Council as referred
to in the Nursing Act, 1978 (Act 50 of 1978);
 Occupational medicine
practitioner?
 'occupational medicine practitioner'
means a medical practitioner as defined in
the Medical, Dental and Supplementary
Health Service Professions Act, 1974 (Act
56 of 1974), who holds a qualification in
occupational medicine or an equivalent
qualification which qualification or
equivalent is recognized as such by the
South African Medical and Dental Council
referred to in the said Act;
 How high is “high”?
 "scaffold" means any temporary elevated
platform and supporting structure used for
providing access to and supporting workmen or
materials or both;
 "suspended scaffold" means a working
platform suspended from supports by means of
one or more separate ropes from each support;
 3(1)(b)(iii) includes working at a height greater
than 3 meters above ground or a landing.
 The HCS Regulations
7(a) that an initial health evaluation is carried out
by an occupational health practitioner
immediately before or within 14 days after a
person commences employment, where any
exposure exists or may exist, which comprises-
(i) an evaluation of the employee's medical and
occupational history;
(ii) a physical examination; and
(iii) any other essential examination which in the
opinion of the occupational health practitioner is
desirable in order to enable the practitioner to do
a proper evaluation;
 The HCS Regulations
7(3) An employer shall not permit an
employee who has been certified unfit for
work by an occupational medicine
practitioner to work in a workplace or part
of a workplace in which he or she would
be exposed: Provided that the relevant
employee may be permitted to return to
work which will expose him or her if he or
she is certified fit for that work beforehand
by an occupational medicine practitioner.
 What does “Fit to Work” mean?

To the required standard

The “Inherent requirements of the Job”

(quality & effectiveness)

Quality (eg. vision, dexterity)

Medically capable of
performing the tasks Effectiveness (eg. strength,
endurance, flexibility)
required

Without undue risk

(self or others)

Can function in the working

Can work in heat, dust,
conditions associated with chemicals, etc.
the job
COGP - Integration with Human
Resource Policies
What is meant by ...
PSYCHOLOGICAL FITNESS?
 Psychological Fitness?
 The intent of the legislator:
 employees should be in a sound state of
mind, appropriate to the level of responsibility
of the tasks at hand
 The intention was NOT:
 A detailed psychological assessment
 Certification by a qualified psychologist
 The Situation – Psychological Fitness

 Wide variations in interpretation, with variations

in application
 Some still using Psychologists or other tests such as
the “Dover Test”
 Some just using Nurses to provide ALL Fitness to
Work certification
 Some doing nothing
 Even some DOL inspectors (and Risk
Consultants!) are doing nothing!
This statement will be removed from the new
construction regulations
Comparison of OCD between
Construction & other industries