Workers' health surveillance

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    Title 4 "Measures relating the workers' health surveillance" of book I of the Code on Well-being at Work generally governs the duties and tasks of the employer and the Prevention Advisor/Occupational Physician in relation to the medical examinations that must be carried out in the context of occupational medicine.

    At-risk functions

    Health surveillance is mandatory for security functions, functions with increased vigilance and activities with a defined risk.

    This is what is understood by:

    • security function : any function involving the use of work equipment, the operation of motor vehicles, cranes, crane bridges, any lifting gear or machinery operating hazardous equipment or devices, or the carrying of service weapons, provided that the use of such work equipment, the operation of such machinery and facilities, or the carrying of such weapons may endanger the health and safety of other workers in the company or from outside undertakings.
       
    • functions with increased vigilance : a function which consists of permanent monitoring of a facility's operation, where a lack of surveillance could endanger the health and safety of other workers (example: computer control of a complex technical installation).
       
    • activity with a defined risk : activities connected under a single term but linked to three different types of risk: either an identifiable risk due to exposure to physical, chemical or biological risks, or a risk linked to exposure to ergonomic constraints (handling of loads), or to constraints linked to the arduousness of the work or to monotonous and repetitive work which entail a physical and mental load (such as certain activities which cause stress or aggravate the risks inherent in these activities because they are carried out at night, (e.g. babysitting, monotonous and solitary activities, carer's duties), or an identifiable risk due to high exposure to psychosocial risks at work (such as continuous contact with difficult audiences).

    It should be noted here that workers who use a display screen are not automatically subject to mandatory health surveillance. Some workers who use a screen are subject to an appropriate health assessment if a worker’s questionnaire or other means (carried out under the responsibility of the Prevention Advisor/Occupational Physician and covering working conditions and potential health problems) demonstrates the possibility of health problems.

    Preventive practices: these are applied by the Prevention Advisor/Occupational Physician for the purpose of health surveillance and include preventive medical examinations (Art. I.4-15), additional medical procedures and the establishment of a medical record.

    Aims

    The aims of health surveillance are explicitly defined: to prevent risks by carrying out preventive practices, with the aim of promoting employment opportunities for each worker, taking account of the specific characteristics and state of health of each worker.

    It is clearly stipulated that the decision of the Prevention Advisor/Occupational Physician, who takes into consideration the function or activity occupied, must be based on the worker's ability or inability to work at the time the examination takes place (Art. I.4-2).

    Employer's obligations

    • The results of the risk analysis carried out under the responsibility of the employer are used to decide whether health supervision is useful or unnecessary. But the employer does not decide alone: the Prevention Advisor/Occupational Physician is involved in the risk analysis, the Prevention and Protection at Work Committee gives its prior opinion, and the Medical Labour Inspector rules in the event of disputes (Art. I.4-3).
       
    • Ongoing evaluation and adaptation of the risk analysis enables the employer to keep the lists up to date, the content of which is fixed (Art. I.4-5). The date of the last compulsory health assessment must appear on the nominative lists (Art. I.4-5, § 2, 4°). The employer cannot make any changes to the lists without the agreement of the Prevention Advisor/Occupational Physician and the Prevention and Protection at Work Committee (Art. I.4-6, § 2). A time limit for keeping the lists is set (Art. I.4-8).
       
    • When the employer notes in particular that a worker's condition undoubtedly increases the risks associated with the function, he must inform the Prevention Advisor/Occupational Physician (Art. I.4-4, §2).
       
    • The employer has a duty to inform workers of the content of the health surveillance in advance (Art. I.4-9, subparagraph 1). This obligation corresponds to the obligation laid down in the Act of 28 January 2003 on medical examinations in the context of labour relations. Article 3, §2 of this Act stipulates that the worker or candidate worker must be informed by confidential and registered letter, ten days before the examination, of the type of information sought, the examination to which they will be subjected and the reasons why it is being carried out. In addition, the employer is also required to remind all workers (including those not subject to health surveillance) each year that they may request a spontaneous consultation with the Prevention Advisor/Occupational Physician (Art. I.4-9, para. 2).
       
    • It should be noted that workers cannot work or be kept at work if they refuse to submit to compulsory examinations or vaccinations.
       
    • It is prohibited for the employer, both during the recruitment and selection period and during the period of employment, to have tests or medical examinations carried out (examples: recruitment selection tests based on considerations other than ability for a determined function or even check-ups offered free of charge) other than those set out in title 4 of book 1 of the Code and it should be noted that the decision of the Prevention Advisor/Occupational Physician essentially relates to the fitness or unfitness of the candidate or worker for a given function or activity at the time of the medical examination (Art. I.4-13).

    Preventive practices and the obligations of the Prevention Advisor/Occupational Physician

    • Preventive practices and medical examinations, to be carried out by the Prevention Advisor/Occupational Physician, are defined and detailed (Art. I.4-14 to I.4-40). 
    • Additional medical procedures may be carried out by the Prevention Advisor/Occupational Physician, or under their responsibility by their nursing staff. 
    • Medical services may be carried out by internal or external services under other laws and decrees, solely for the workers of affiliated companies, such as, for example, the medical examinations provided for by the regulations on driving licences (Art. I.4-14, § 1, subparagraph 2).
    • Preventive medical examinations are carried out by the Prevention Advisor/Occupational Physician who collaborates on the company's risk analysis (Art. I.4-17).

    The different forms of health surveillance

    • Prior health assessment : the times at which this assessment must take place and the times at which the decision on fitness must be given and notified are specified: the prior health assessment and notification of the decision can take place before the employment contract is signed, provided that this health assessment is the final step in the recruitment and selection procedure and that the employment contract is actually signed if the candidate is declared fit (Art. I.4-26). In any case, it is mandatory that this health assessment takes place prior to the actual posting. Indeed, if there are contraindications as to the performance of the function or activity or if preventive measures (such as vaccination) need to be taken, the health assessment must of course be done before being exposed to the risk.

      It is therefore possible to carry out the prior health assessment after the employment contract has been signed, but before the actual posting to the at-risk function concerned. This period should be as short as possible, since the worker is already on duty. If the employer carries out a health assessment on a worker who is already exposed to the risk, this assessment cannot be considered as a prior health assessment, but as a periodic health assessment. This means that consultation and appeal procedures apply.
       
    • Periodic health surveillance: the workers referred to in Article I.4-3, §1 are subject to periodic health surveillance. This periodic health surveillance is divided into two parts:
      • a health assessment (i.e. a recent medical history and a clinical examination), carried out by the Prevention Advisor/Occupational Physician himself;
      • additional medical procedures carried out by the Prevention Advisor/Occupational Physician, or by his nursing staff under his responsibility. It is always the Prevention Advisor/Occupational Physician who interprets the results of these procedures.

    Additional medical procedures:

    The Prevention Advisor/Occupational Physician can potentially replace the additional medical procedures referred to in Appendix I.4-5 of the Code with other additional medical procedures which offer a protection level equivalent to those provided for in that Appendix (Art. I.4-31).

    The frequency of the periodic health assessment and additional medical procedures is determined by risk in in Appendix I.4-5 of the Code.

    If the Prevention Advisor/Occupational Physician finds that the additional medical procedures that take place between two periodic health assessments show an "unusual result", they must contact the worker concerned. In this case, they may decide, depending on the practical circumstances:

    • to submit the worker concerned to a periodic health assessment; 
    • to subject all or some workers who are exposed to the same risk to a health assessment as well; 
    • to increase the frequency of periodic health assessments and/or additional medical procedures for the worker concerned and possibly also for all or some workers who are exposed to the same risk. This higher frequency is maintained until the Prevention Advisor/Occupational Physician deems that the risk is under control (Art. I.4-32).

    The Prevention Advisor/Occupational Physician may also decide to increase the frequency of periodic health assessments and/or additional medical procedures for one or more workers, temporarily or otherwise, "for specific situations which have or may have a negative impact on the state of health of the worker(s)", for example due to incidents or accidents that have occurred in the workplace (serious occupational accident, exceeding action values, ...), due to changes in the workplace or when the worker belongs to a specific risk group (e.g. formerly exposed to one given substance and now to another one) (Art. I.32, §3). 

    The CBE inspection (medical labour inspector) can of course increase the frequency of the health assessment or determine the content and timing of additional medical procedures. 

    The collective and individual preventive measures to be taken by the employer following the results of the periodic health surveillance are clearly listed and are designed to avoid or reduce the risks. Individual measures are proposed on the health assessment form and collective measures are taken depending on the duties that the employer has assigned to the external service. These measures may also arise from the results of other medical examinations (Art. I.4-33).

    • Spontaneous consultation (Art. I.4-37): each worker may request a spontaneous consultation directly with the Prevention Advisor/Occupational Physician, without the employer's intervention, because they have health complaints which they believe can be attributed to the work to be performed. In this case, the Prevention Advisor/Occupational Physician will notify the employer, unless the worker does not agree (in which case the worker must then visit the Occupational Physician during a leave period). The GP may also ask - with the worker's agreement - the Prevention Advisor/Occupational Physician to examine the worker in the context of a spontaneous consultation. The Prevention Advisor/Occupational Physician has ten working days to carry out a health assessment. If the Prevention Advisor/Occupational Physician deems that the worker is unfit for work, he will indicate the decision on the health assessment form, which may be followed by any consequences relating to the Occupational Physician's decision. 

      In addition, workers for whom a reintegration plan has been drawn up as part of a reintegration process as referred to in chapter 6 of book I, title 4 of the Code may request a spontaneous consultation if they believe that all or some of the measures in the reintegration plan are no longer appropriate to their health situation. The Prevention Advisor/Occupational Physician can then review the reintegration path.  
       
    • Extended health surveillance : the purpose of such surveillance is to enable workers to have their health monitored after they have been exposed to chemical, physical or biological agents, whether they are still with the company or have left it. The employer is responsible for implementing this surveillance, but the medical labour inspector may decide to impose such surveillance (Art. I.4-38). 
    • Return to work examination (Art. I.4-34): this examination is mandatory for workers subject to compulsory health surveillance after an absence of at least four consecutive weeks due to illness, accident or childbirth. The Prevention Advisor/Occupational Physician may consult with the GP and the medical officer if the worker agrees. This examination must take place at the earliest on the day of the return to work and at the latest within 10 working days.
    • The purpose of the pre-return to work visit is to enable the Prevention Advisor/Occupational Physician to propose feasible workstation adjustments to the employer, before the actual return to work, for a worker who may or may not be subject to health surveillance, so as to reduce the constraints linked to this function. On the day they return to work, the worker will be able to reintegrate more easily into an already adapted function.

    This is a visit that takes place during the period of unfitness for work. The purpose is not to provide a diagnosis of the worker's fitness or unfitness during a medical examination. This makes sense, since the visit is made during the period of the worker's unfitness.

    The employer must inform all workers, whether or not they are subject to health surveillance, of their right to benefit from this visit, even if there is no case of long-term unfitness for work.

    Procedure for benefiting from this visit:

    • Workers who are unfit for work decide themselves whether they want to benefit from the pre-return to work visit by contacting the Prevention Advisor/Occupational Physician directly.
        
    • The worker states whether or not they agree that the Prevention Advisor/Occupational Physician can consult the worker's GP and look at their medical record. With the worker's agreement, the Prevention Advisor/Occupational Physician may also contact the medical officer. It may therefore be that, in the context of a gradual return to work as regulated in Article 100, §2 of the Coordinated Law of 14 July 1994 regarding the compulsory insurance for medical treatment and benefits,  a worker may want a gradual return to work with the employer's consent. If this happens outside the reintegration process as provided for in part IV, book I, title 4 of the Code (French: Code - Livre I - Titre 4 - Mesures relatives à la surveillance de la santé des travailleurs (PDF, 511.88 KB)  – Dutch: Codex - Boek I - Titel 4 - Maatregelen in verband met het gezondheidstoezicht op de werknemers (PDF, 596.61 KB)) (e.g. if the employer and the worker simply and reciprocally wish to reach a compromise concerning the adaptation of the work or another role), the worker may ask the Prevention Advisor/Occupational Physician to participate in this consultation in order to find the best solution for a gradual return to work. Here it may be advisable to contact the health insurance company's advising physician. 
       
    • The pre-return to work visit to the Prevention Advisor/Occupational Physician must take place within ten working days following receipt of the request by the employer. 
       
    • During the visit, the Prevention Advisor/Occupational Physician talks to the worker about their health situation and workstation.
       
    • As soon as possible, the Prevention Advisor/Occupational Physician visits the worker's workstation on site to look for possible layout solutions and then proposes their recommendations to the employer in the ad hoc section (F) of the health assessment form. At this stage, it is not therefore a decision of fitness or unfitness to work. 
       
    • The employer pays the worker's travel expenses for this visit.

    The decision of the Prevention Advisor/Occupational Physician after the health assessment

    • The health assessment form (Appendix I.4-2, part 1): the document which must be completed in three copies, one of which is for the employer, another for the worker and the third for the worker's medical record (Art. I.4-46). It contains different sections, to be completed depending on the practical situation. Thus, there is a section on the examination of a pregnant or breastfeeding worker, which provides that if the Prevention Advisor/Occupational Physician decides that the worker should be placed on sick leave, it is because of a condition not related to the pregnancy, in order to prevent a decision to exclude the worker from being taken without being linked to the risks that the worker's activity may present. The period of validity of fitness on the form must be mentioned when a different frequency of periodic health surveillance is set out in a specific provision or is set by the Prevention Advisor/Occupational Physician or by the medical labour inspector.
    • Any decision of unfitness after a prior health assessment must be justified by the Prevention Advisor/Occupational Physician, and the candidate or worker may request that this justification be sent to their GP (Art. I.4-47). This provision does not apply to decisions on other medical examinations, which may be appealed against.
       
    • The Prevention Advisor/Occupational Physician must indicate on the form what preventive measures should be taken when they judge that a worker can be kept at his workstation (Art. I.4-54).
       
    • The Prevention Advisor/Occupational Physician must also inform the worker of their right to invoke the consultation and appeal procedures (Art. I.4-56).
       
    • The employer must be able to justify to the medical labour inspector if he declares that he is unable to offer other work in accordance with the recommendations made by the Prevention Advisor/Occupational Physician on the health assessment form (Art. I.4-68, § 1).
       
    • Provided that the appeal procedure has not resulted in a final decision on the employee's fitness or unfitness, the employer may not invoke force majeure to terminate the employment contract (Art. I.4-68, § 3).
       
    • For a worker suffering from a serious contagious disease, the role of the Prevention Advisor/Occupational Physician is more extensive and used to protect the health of other workers (Art. I.4-71).

    The medical record

    • Respect for privacy is guaranteed (Art. I.4-83 and I.4-96).
       
    • Responsibilities relating to the management of the medical record are clearly assigned: the Prevention Advisor/Occupational Physician is responsible for establishing and updating a worker's record and the Prevention Advisor/Occupational Physician who manages the health surveillance section or department manages all records; the quality manual of the health surveillance section must contain the rules of procedure (Art. I.4-83, I.4-84 and I.4-88).
       
    • The medical record contains 4 distinct and detailed sections, the last of which concerns exposure data, which may be both qualitative and quantitative and is representative of exposure to physical or chemical agents (Art. I.4-85, I.4-86 and I.4-87).
       
    • The medical record can be automated, in accordance with the provisions of the Act of 08-12-92 relating to privacy protection (Art. I.4-96). The person responsible for data processing is the Prevention Advisor/Occupational Physician in charge of the health surveillance section or department (Art. I.4-97).

    Declaration of occupational diseases

    The Prevention Advisor/Occupational Physician who records an occupational disease or who is informed of it by another physician, makes a declaration to the medical labour inspector of the Directorate General of Supervision of Well-being at Work and to the medical advisor of the Federal Agency for Occupational Risks (Fedris). This declaration is made using a form which must correspond to the template in Appendix I.4-4.

    This form is available electronically on our French and Dutch pages.