Occupational Physician & Occupational Risk Assessment
The obligation to protect the life and health of employees
The sudden arrival of the pandemic was an extremely drastic and multi-layered important reminder to all of us. Among other things, it reminded us the value and importance of life and health. In general. In every aspect of -of all of our lives. Clearly in the work environment as well. As for the latter, we must remember that it is the responsibility of the employer to protect the life and health of their employees. And, although it is not the main obligation of the employer, it does not mean that it is a minor one. That it comes second. The state has, moreover, enacted a set of provisions delimiting this obligation. In this context, the Safety Engineer and the Occupational Physician have a significant role. And, of course, so does the Occupational Risk Assessment.
Let us try to approach the latter.
The main and ancillary obligations of the employer deriving from the employment contract
The employment contract between the employer and employee can be concluded in writing or (even) orally. However, regardless of the way it is concluded, it generates a number of rights and obligations for both the business (employer) and the employee.
The main obligation of the employer is the payment to the employee of the legal or, as the case may be, the agreed upon salary (648 Civil Code). However, the employer also undertakes a series of ancillary obligations. These are the ones that make up the “obligation of care” of the employer.
Among the ancillary obligations are those related to the protection of personal and property goods of employees. The protection, ie, of their life and health, of their personality and of their property.
A possible violation of said obligations is associated with a series of civil, criminal and administrative sanctions. It is this fact that, among other things, demonstrates the special care of the State regarding its observance.
In particular: the obligation to protect the life and health of the employee
The obligation to protect the life and health of employees is ensured by a series of provisions of civil, public and criminal law.
The obligation of the employer to protect the life and health of employees in the context of the employment relationship is established by the Civil Code. The relevant provision (662 of the Civil Code) provides: “The employer must arrange for the work and its premises, as well as for the accommodation, facilities and machinery or tools, in order to protect the life and health of the employee.”
In addition, there is a set of provisions of public law aimed at the comprehensive protection of employees. These provisions constitute the legislation on health and safety at work.
These are the provisions that are part of either the general or the specific, relevant, legislation. That means that some provisions concern all employees, while others concern only specific categories of employees (eg Presidential Decree 788/1980 “on security measures during the execution of construction projects”).
A milestone in the legislation for the health and safety of employees is Law 1568/1995 (: “Health-Safety of employees”). This law has been innovative in the field of obligation of the employer to precautionary protect the life and health of employees. Its scope extends, with few exceptions, to all activities of the private and public sector. After the adoption of this law, various, supplementary, legislations were issued. All of them were codified by Law 3850/2010.
The innovations of law 1568/1995 concerned the introduction of completely new institutions in the field of safety and health at work in our country. As such are the institutions of the Safety Engineer and the Occupational Physician -already provided for by Law 3850/2010.
The Occupational Physician
The obligation to employ an Occupational Physician
Those businesses that employ more than fifty (50) employees are obliged to employ (not only a safety engineer but also) an occupational physician (article 8 par. 2 law 3850/2010). To calculate the number of employees, the employees of all Subsidiary Offices, Branches, separate facilities, and independent holdings of the main business are taken into account.
The role and duties of the Occupational Physician
The Occupational Physician has medical and consulting responsibilities. Their role is basically preventive. Organizationally, they report directly to the company’s management.
The Occupational Physician “provides suggestions and advice to the employer, the employees and their representatives, in writing or orally, on the measures to be taken for the physical and mental health of the employees…”.
The written instructions are recorded by the occupational physician in a special book, which is recorded by the Safety Engineer. The employer becomes aware of said suggestions in written and signed form, as they are registered in the specific book (article 17 par. 1 law 3850/2010).
The Occupational Physician, according to article 17 par. 2 of law 3850/2010, advices on issues regarding the:
“(a) design, planning, modification of the production process, construction and maintenance of facilities, in accordance with the rules of health and safety of employees;
- b) taking protection measures during the import and use of materials and equipment supply;
- c) physiology and psychology, ergonomics and hygiene at work, arrangement and shaping of jobs and work environment and organization of the production process;
- d) organization of a first aid services;
(e) initial placement and change of job for health reasons, temporarily or permanently, as well as inclusion or reintegration of disadvantaged persons in the production process, even with a suggestion of job reform. “.
It should be noted, however, that the occupational physician is not allowed to be used to verify whether or not an employee is absent due to illness.
An important obligation of the occupational physician is the obligation to supervise the health of the employees, as it is, in detail, provided in article 18 of law 3850/2010.
Specifically, the Occupational Physician conducts: “… a medical examination of the employees related to their job position, after their hiring or change of job position, as well as a periodic medical examination at the discretion of the labor inspector… Arranges for medical examinations and measurements of factors of the working environment in application of the provisions that apply each time. Evaluates the suitability of employees for the specific job… “.
In addition, among other things “… oversees the implementation of measures to protect employees’ health and prevent accidents. For that reason, the Occupational Physician:
(a) regularly inspect jobs and report any omissions, propose measures to address the omissions and monitor their implementation;
(b) explain the need for the proper use of individual protection measures;
- c) investigates the causes of occupational diseases, analyzes and evaluates the results of research and proposes measures to prevent such diseases;
(d) monitors the employees compliance with employees’ health and safety rules, informs employees of the risks arising from their work, and of ways to prevent them;
(e) provides emergency treatment in the event of an accident or a sudden illness “.
Who can act as an Occupational Physician?
The duties of an Occupational Physician are exercised by doctors. The Legislative Decree of 20.3.20 replaced article 16 of the code of laws for the health and safety of employees (KNYAE) which was ratified with the first article of law 3850/2010 (A’ 84). Pursuant to the relevant provision (Article 16-1), the duties of an occupational physician may be exercised by:
“a) Physicians who hold the specialty of occupational medicine,
- b) Physicians who hold a degree in any specialty other than occupational medicine and who have performed the duties of occupational physician in businesses before the 15th of May 2009;
- c) Doctors without specialization who have performed the duties of occupational physician in businesses continuously for at least seven (7) years until May 15, 2009.
It is noteworthy, however, the (added by the said Legislative Decree) §2 of the same article, on the basis of which:
«2. The doctors of par. 1 can exercise the duties of an occupational physician in all the regions of medical associations of the country, without the permission of these associations “.
This addition proved to be particularly critical (as we mentioned in our previous article – question 8) “as (legislative) entanglements of the very recent past (associated with bad trade union practices) created serious problems in choosing an Occupational Physician. For the selection of an occupational physician (who did not have the specific specialty-although they were included in the relevant Special Catalogs), until then, a certificate from the relevant Medical Association was required regarding the non-existence of an available Specialist in the same region (!!!) »
For the employment of the Occupational Physician, the employer has the option to choose in the assignment of the duties of the occupational physician: (a) to employees of the business, (b) to persons that are not employed by the business, (c) to a company that provides External Protection and Prevention Services and, finally, (d) a combination of the above (article 9 §1 law 3850/2010).
The obligation to notify the Labor Inspectorate
The employer is obliged to notify in writing to the Labor Inspectorate the information of the one who assumes the duties of the Occupational Physician. When the latter is a third party, the employer is obliged to share a copy of their employment contract. In the case of hiring company that provides External Protection and Prevention Services, the employer must also share the relevant contract, which in fact must bear the content defined by law (article 9 §7 of law 3859/2010).
Occupational Risk Assessment
Occupational Risk Assessment is the written assessment of the risks created at work. Risks related to the safety and health of employees. It concerns the existing risks and, in addition, those that are likely to occur. It includes, of course, the groups of employees who are exposed to particular risks.
The Occupational Risk Assessment is, unfortunately, a rather degraded obligation in the minds of most of us. It is, however, particularly important. And, most importantly, legally mandatory for all businesses, without exception. It is subject to the special obligations of the employer (article 43 of law 3850/2010). In fact, the recent pandemic made it necessary to update it as we were called to manage new, unprecedented, risks (as we pointed out in an earlier, as early as 15.3.20, article of ours- 7th question)
The drafting of the Occupational Risk Assessment can be carried out by: (a) the Safety Engineer, (b) the Occupational Physician, (c) the company that provides External Protection and Prevention Services.
Its purpose is:
“a) to identify the sources of occupational risk, ie what could pose a risk to the safety and health of employees;
- b) to determine whether and by what measures the sources of risk can be eliminated or avoided, and if this is not possible;
- c) to record the precautionary measures already in place and propose what should be taken in addition to controlling risks and protecting employees. “
Ensuring the life and health of their employees is one of the most important obligations of the Employer. There is an adequate legal framework that defines and sufficiently specifies its obligations. As we mentioned in the introduction, the Safety Engineer, the Occupational Physician and the Occupational Risk Assessment hold important positions among them.
The obligation to employ an Occupational Physician was, until the beginning of the pandemic, another “burden” with no return for the vast majority of the liable businesses. The entanglements of the existing institutional framework until March 2020 (which succumbed to specific trade union logics) contributed to the feeling of the obligation being a” burden”.
But things have changed. The institutional framework for occupational physicians was relieved of union burdens.
The pandemic changed the lives of us all. It highlighted, even more, the value of occupational physicians.
We already enjoy their services.
It is worth further utilizing them.
Especially in the present circumstances.
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 1, 2020).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.