Problems at regulating occupational health and safety

BACKGROUND INFORMATION: The Ministry of Social Affairs addressed the Estonian Employers’ Confederation with a request to determine the regulations relating to occupational health and safety that are excessively burdening for the enterprisers or meaningless from the point of view of occupational safety. On the basis of the research results the Ministry of Social Affairs is planning to advance a lawmaking initiative.  

The Estonian Employers’ Confederation conducted a questioning among its members to determine the occupational health and safety norms in the current legislation that unreasonably limit the enterprise. The main problems named by the enterprisers are listed below.

1. Differentiation of demands
The occupational safety requirements set for the enterprises should be differentiated according to the areas of activity, according to the risk factors and risks. There is no need or sense to carry out regular internal control of the working environment, followed by analysis, working out of measures, and other procedures, in the same amount for office workers and production workers. At the same time the differentiation is necessary not only between the office enterprises’ and industrial enterprises’ workers. What is suitable in production might not be suitable in transport, where the drivers are constantly on the road and also the risks are of other kinds.
 
It is too much to demand all of the occupational health activities from both micro- and big enterprises (for example, internal control). Such activity could start at an enterprise, where there are, for example, 10 or more employees. At an enterprise with a smaller number of employees such activity is unfortunately just a formality.

2.  Employer’s expenses
Employers’ main cost drivers are different controls and trainings; therefore the obligatoriness and relativity of every control should be thoroughly weighed.

Before commencing the work the employee should bear his medical examination expenses himself. Pursuant to Clause 5 2) of Decree No 74 of the Minister of Social Affairs of 24 April 2003, the employees’ medical examination starts in the first month of commencing the work. A period of one month is usually too short to determine whether the employee suits for the job or not (probation period is 4 months). Employees’ first medical examination right at commencing the work or even before commencing the work (night-time employees) is very burdening and expensive for the employers as many new employees leave before the end of the probation period. New employees could present a certificate regarding the general state of their health issued by their family doctor (or a health card from the previous place of work). Medical examination would be reasonable when the employee has already been trained for the job and has worked for some time and it is possible to evaluate the actual influence (on the basis of the risk assessment) of the working environment on his state of health. Such period could be a probation period for not-night-time workers.

One has to agree that in case of working with a display the eyes and the eyesight should be checked. But what is the current examination of system of bones and musculature is not really clear. Still it constitutes a big part of the cost of medical examination of the employee working with a display.

Today only the accredited measuring laboratories can measure the risk factors. At the same time the employers could be allowed to measure risk factors also independently, without using the services of the measuring laboratories in case they have their own specialists and measuring equipment at the enterprise. Fee for measuring usually makes up the biggest part of the cost of risk assessment.

The providers of occupational health services to the enterprises located far from bigger cities often enjoy monopoly dictating the prices and the amount of services, which means notable expenses for the employers. Therefore one should weigh the possibility of having later health examinations carried out by family doctors (at least partially).

The volume of medical examination for production enterprises’ employees should be specified as the providers of occupational health services often unreasonably prescribe different additional procedures, which the employer has to pay for.

Also the circumstance that many occupational health activities are taxed with a special concession has been named as a problem.

3. Risk assessment
Performing of risk assessment in the office rooms could be voluntary not obligatory for the employer.

Pursuant to Clause 13 (1) 3) of the Occupational Health and Safety Act, the results of the risk assessment have to be preserved for 55 years, at the same time Clause 7 1) of the Procedure of Employees’ Medical Examination requires from the provider of occupational health services the preservation of medical examination cards and results of medical examinations for 75 years beginning from the date of birth of the employee and Clause 2 requires from the employer the preservation of the medical examination decisions for 10 years after the termination of the labour relations with the employee. As both risk analyses and medical examination cards and decisions are all preserved for determining the causes of the later occupational diseases (connected with work) of the employee, the system could be somewhat unified, including by the acts regulating labour relations, in which the long-term preservation period of the employee-related data is also stipulated. At the same time preservation of the data until the employee becomes 75 years of age is an unreasonably long term as well as the 55-year preservation of the risk assessment.
 
It is not excluded that the risk assessment won’t help to prove anything (for example, in case of clearing up of an occupational disease case). When the employees are subject to regular medical examination on the basis of the valid procedure, the necessary database to be preserved is created by those who carry out the medical examination (employee’s health declaration, employer’s order setting out the risk factors, occupational health doctor’s conclusions regarding medical examination).
Pursuant to Clause 13 (1) 5) of the Occupational Health and Safety Act, it is always necessary to conduct a new risk assessment of the working environment if the working conditions have changed and the work equipment or technology has been upgraded. Organisation of a totally new risk assessment is a very capital-using activity – it would be reasonable to supplement the current risk assessment with the new situations (including the versions control).

In case of change of the provider of occupational health services the previous provider of occupational health services should be obliged to transfer the medical examination cards and results of medical examinations of the employees to the new provider of occupational health services to ensure the constancy and the relevance of the future medical examination decisions proceeding from the previous results. Such documentation should so to say accompany the employee to the provider of occupational health services. It would be even better to apply the so-called digital medical histories. In that case it wouldn’t be necessary for the employer to preserve the medical examination decisions after the termination of the labour relations.

4. Problematic or unnecessary activities
The occupational safety action plan should not provide for preventive measures (Clause 13 (1) 4) of the OHSA).

The volume of information to be transmitted according to Clause 13 (1) 6) of the OHSA is too big.

It is doubtful, whether the employer should organise the elections of the working environment council and a working environment counsellor at the enterprise with only office employees (over 50 employees) and release the elected employees from their main duties weekly for 1-3 hours minimum. Their work remains a formality, actually unnecessary and inoperative. It would be enough for the employer to appoint a competent working environment specialist, Pursuant to Section 16 of the Occupational Health and Safety Act, who would find solutions for the working environment issues.

Notifying the Labour Inspectorate in writing of commencing one’s activity or changing of the area of activity is not reasonable. As an alternative the information could be forwarded by e-mail.

Pursuant to Subsection 22 (4) of the OHSA, the doctor shall inform the employer of a serious occupational accident immediately after assessing the seriousness of the occupational accident; at the same time Clause 7 (1) of Decree No 146 of the Government of the Republic of 13 May 2003 “The Procedure of Registration, Notification and Investigation of Occupational Accidents and Occupational Diseases” requires that the employer investigated the circumstances and causes of an occupational accident and submitted a report within 10 days beginning from the day when the occupational accident occurred. Therefore the employer has up to 10 days to investigate the occupational accident and to prepare a report. As there are essential differences in investigation of minor and serious occupational accidents, the employer waits for the doctor’s notice. In case of a minor occupational accident there is not going to be such notice. But the 10-day term for submission of the report and investigation materials (in case of a serious occupational accident) is approaching and in case of failure to submit the required documents in time the employer is threatened with a fine. Upon registration of an occupational accident (be it a minor or a serious one) the doctor should promptly notify the employer thereof in writing.

Other proposals

1. To increase the limit of obligation to elect a working environment representative, specified in Clause 17 3) of the OHSA, from 10 employees to 50 employees.

2. To prolong the validity term of commission of working environment representatives to four years. The current 2-year term is too short, as it comprises both the training of representatives and their activity in the field of working environment. Besides, organisation of elections of working environment representatives at a big enterprise scattered all over Estonia takes a lot of time.

3. To eliminate duplication in representation of employees. Namely, the employer undertakes to elect working environment representatives and the employees elect their authorised representatives from among themselves. The Act defines the working environment representatives as representatives of employees in occupational health and safety issues and the authorised representatives – as representatives of employees in relations with the employer, but in reality they mostly deal with the same issues. This is inevitable as the labour relations issues of the employer and the employee often concern the occupational safety and health. The Act could provide for the unification of the working environment representatives and the  authorised representatives, i.e. to permit that in case of availability of authorised representatives there would be no need to elect working environment representatives in addition to that, but the authorised representatives would represent the employees also in the occupational safety and health matters or vice versa.    

4. There are several cases when the employer is not informed of the accident happened to an employee, in good time. Though all employees are obliged to notify the place of work of the occurred injury, it doesn’t work. Sometimes an employee goes to the doctor to get his finger dressed during the working time, he doesn’t need a certificate for sick leave and goes back to work without notifying the employer of his visit to the doctor. But the doctor is obliged to notify the Labour Inspectorate of every person who visits him with an injury. It would be good if the doctor also promptly notified the employer of the injury – that would quicken the official investigation of such occupational accidents.

5. Decree No 172 of the Government of the Republic of 10 June 1992, which regulates the compensation for damage caused in consequence of an injury received upon performing of duties, allows of too different interpretations. 

6. Problematic is also the procedure for determination of the degree of seriousness of occupational accidents, regarding what the arguments arise between the employers and doctors. The doctors precede from the Instruction on Determination of Serious Damage to Health established for application of Clauses 2 3) and 4 2) of Decree No 301 of the Government of the Republic of 13.09.2000 “The Procedure of Investigation and Regulation of Occupational Accidents and Occupational Diseases”.  Pursuant to it, the doctor may consider a partial traumatic amputation of a nail link on the small finger of the left hand a serious trauma. At the same time the traumatic amputation of a limb is also a serious trauma.   
 
7. Pursuant to Subsection 12 (6) of the OHSA an employer shall inform another employer who sends workers to perform duties at the enterprise of the first employer of the risks related to the operation of such enterprise and the measures to avoid such risks, and inform the workers of the risks present at the workplace and instruct them in ways to avoid such risks before they commence performance of their duties. The text is not quite correct as the first part of the sentence talks about the notifying of the other employer and the second part of the same sentence – already about instructing of the other employer’s employees, with whom the first employer has no legal connection. 

8. It is doubtful that reviewing of organisation of internal control of the working environment every year is absolutely necessary even when it functions properly.

9. The concept “… being under the significant influence of psychotropic substances” in Clause 13 (1) 15) (also in Subsection 14 (2)) of the OHSA needs to be specified.
Pursuant to Clause 15 1) of the OHSA, an accident is a serious accident, which occurs at an enterprise and may endanger the life or health of employees or that of other persons. The concept “a serious accident” remains unclear.
On the basis of Clause 15 (2) 5) of the OHSA the employer must give instructions to employees to stop work and/or leave the danger area in the event of a serious or unavoidable risk of accident. A threatening danger has been left out, though it should be a signal for action. In Subsection 15 (3) of the OHSA, the serious danger is repeated.
As the employee must act proceeding from these circumstances, these concepts should be defined more specifically in order to avoid litigations.

10. We find that in case there is a medical room or a first aid station at the enterprise, there should be no need for obligatory availability of first-aid givers in the day shift (as a respective service is guaranteed by the first aid station worker, who has a respective training and training in the speciality, in addition to that).

11. In case of change of the provider of occupational health services the previous provider of occupational health services should be obliged to transfer the medical examination cards and results of medical examinations of the employees to the new provider of occupational health services to ensure the constancy and relevance of future medical examination decisions proceeding from the previous results. Such documentation should so to say accompany the employee to the provider of occupational health services. It would be even better to apply the so-called digital medical histories. In that case it wouldn’t be necessary for the employer to preserve the medical examination decisions after the termination of the labour relations.

12. Family doctors should be given the right to perform medical examinations of employees. The employee pays for the medical examination upon commencing the work. Later medical examination occurs at the family doctor’s on the basis of the decision of the employer or recommendation of the family doctor. It is paid for by the Estonian Health Insurance Fund. A motor vehicle driver’s medical examination is paid for by the employee.

13. To leave out Clauses 13 (1) 7) and 10) and amend Clauses 4, 6 and 17 as follows:
“4)  based on the risk assessment of the working environment, prepare a written action plan;
6) notify the workers of the risk factors, the results of risk assessments of the working environment and of the measures to be implemented in order to prevent damage to health;
17) prepare and approve the safety instruction regarding the work done and instruct workers how to avoid pollution of the environment;”.

14. There is no need or sense to carry out regular internal control of the working environment, specified in Subsection 13 (1), followed by analysis, working out of measures, and other procedures, for (white-collar) office workers and production workers in the same way as at the production enterprises. That is especially when the working conditions in the offices comply with the requirements, have not changed and the only hazardous factor is, for example, working with the computer.

15. We propose to amend Subsection 12 (6) of the OHSA as follows:
“An employer shall inform another employer who sends workers to perform duties at the enterprise of the first employer of the risks related to the operation of such enterprise and the measures to avoid such risks, and inform the workers, whose work he organises, of the risks present at the workplace and instruct them in ways to avoid such risks before they commence performance of their duties”. The text added is underlined.