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Global Solutions Episode 2: What’s up, Doc? Designated Occupational Medical Providers’ Roles in Reopening During COVID-19

In preparing global strategies for monitoring employee health, employers with international workforces may want to be aware that occupational medicine plays a key role for employers in many countries outside the United States—whether in the hiring and termination process, in developing and implementing health and safety plans, or in evaluating work-related illnesses and injuries.

Europe

Many countries in Europe rely on designated occupational physicians to advise employers, assist with issues of illness-related leaves of absence, and promote workplace safety. Some jurisdictions have stated explicitly that an occupational physician must handle any employee temperature checks or health screenings. Below are some recent examples of the involvement of occupational health services. Employers may want to double-check the requirements for every country in which they are operating.

Belgium

Following a hiatus on occupational health exams of employees due to the COVID-19 pandemic, Belgium’s minister for employment recently issued a statement requiring occupational physicians to work with employers to determine which health assessments are a priority (such as the assessment of employees who are at higher risk due to preexisting health conditions or the susceptibility of exposure to coronavirus due to their particular jobs).

France

In France, the government issued guidance to employers on return-to-work protocols suggesting that occupational health providers be utilized for additional guidance when developing individualized worksite plans.

Germany

Certain employers may need to appoint occupational physicians depending on the type of business operation, the number of employees, and the industry involved.

Netherlands

The law requires companies to hire occupational physicians or engage an occupational health and safety service to be involved extensively in matters such as clearance to return to work, managing sick leave, and risk assessment. Note that some obligations vary by industry.

Poland

Employers must contract with an occupational medicine unit for medical clearance at an employee’s time of hire, during periods throughout the employment, and in other applicable circumstances.

Romania

Employers must ensure employees have access to occupational medicine to provide employees medical examinations and clearance for work.

United Kingdom

The occupational health services may be especially helpful when dealing with return-to-work guidelines for medically vulnerable employees.

Americas

The role of the occupational medical professional in various countries in North America and South America is fairly expansive and often defined by the labor laws. The occupational health professional assists companies in the creation and maintenance of safe and healthy workplaces by designing plans, conferring with internal health and safety committees, and conducting pretesting, post-testing, and periodical testing of the workforce.

Argentina

Employers must hire workplace medical services (either internally or through an external service provider), including occupational physicians. The services must create a workplace health and safety program, with an accompanying manual. While the Ministry of Labor, Employment, and Social Security has not yet issued generally applicable return-to-work guidelines, the Government of the Buenos Aires Province issued a resolution requiring employers to implement basic hygiene and safety measures as they reopen their workplaces. Please note that under this resolution, an employer may designate any person (not only an occupational physician) in the company to take employee temperatures.

Brazil

Under the country’s labor laws, employers are obligated to retain a specialized occupational physician, who will create various health and safety plans and conducts pre-, post-, and intermittent employee medical exams. The health and safety plans are adopted by the Commission on Accident Prevention (CIPA). The CIPA is responsible for ensuring employer compliance with health and safety laws. Employers considering return-to-work plans may want to be aware that such plans are typically developed by occupational physicians, who also conduct temperature screens. Any health-related information gathered during this process will be retained by the occupational physician only.

Chile

While employers are not required to retain an occupational physician, they are required to subscribe to one of the two private companies that insure against work-related accidents and professional illness. These insurers conduct pre-, post- and periodic health screenings of all employees. Please note, however, that mining and industrial companies with more than 100 employees must have an internal department of prevention of professional risks, which requires the regular presence of specialized health personnel. Notwithstanding COVID-19 regulations, the employer ordinarily has the obligation, under the Labor Code, to implement measures, such as temperature taking, to protect the health of the workforce and may designate any person to take the temperature with a non-physical contact thermometer.

Mexico

Under the Federal Labor Law, employers must maintain first aid kits and materials in the workplace and train individuals to administer first aid. Employers, with more than 100 employees, are required to have certified doctors, with appropriate facilities, for emergency purposes. Under the Technical Guidance for Reopening of Economic Activities issued by Mexico’s government, employers must implement a series of measures to reduce the risk of workplace infection, among those, temperature screenings of employees, customers, and suppliers on entry to the workplace. However, the guidance does not specify that temperature screenings may only be conducted by certified doctors.

Canada

Each Canadian province has its own legislation with respect to occupational health and safety (although the laws are substantially similar). For example, in Québec, only certain industries are required to have designated physicians for occupational health and safety purposes (e.g., the mining industry). Generally, the role of the occupational physician is to implement a safety plan, which identifies the primary safety risks present in the workplace. To date, neither the federal nor the provincial governments have issued guidance with respect to the role of the occupational physician regarding the implementation of COVID-19 procedures in workplaces, including temperature screenings.

Asia

Outside of the Philippines, workplace health and safety regulations typically do not require the involvement of occupational physicians, but there are a few relevant systems to be aware of, such as regular physical examinations in some locations.

China

Employers must assign special personnel (either a government worker or a professional workplace safety inspector) to perform routine testing and supervision of potential risk factors in the workplace. However, the special personnel need not be a designated occupational physician. Employers must also arrange for routine physical examinations for employees working in hazardous occupations.

Indonesia

Articles 11 and 12 of Regulation No. 50 of 2012 for the Implementation of Occupational Safety and Health Management System, requires employers to appoint a “human resource” (who can be an employee) who has a certain level of competency and authority in the area of occupational safety and health, though that person need not be an occupational physician or medical provider.

Japan

While there is no requirement to designate a “company doctor,” each employer is required to designate an industrial physician familiar with the applicable industry standards from the Ministry of Health, Labor, and Welfare’s approved list of physicians. The company doctor is responsible for overseeing the workplace’s health and safety maintenance and compliance with the Ministry directives. The designated industrial physician is empowered to make recommendations regarding employee health maintenance, and the recommendations must be respected. The employers must endeavor to make the designated industrial physician, or an equivalent medical professional, available to employees to discuss health maintenance concerns.

Philippines

Employers with more than 200 employees must have company physicians on their health and safety committees. Each employer is required to have occupational health services at their workplaces that are primarily focused on essential preventative measures. Employers are also required to conduct pre-employment/pre-placement physical examinations and annual physical examinations, although the examinations do not have to be conducted by the company physicians.

Taiwan

Employers with employees in Taiwan must require pre-employment physical examinations of job applicants and periodic examinations of current employees, but these exams need not be conducted by designated occupational physicians. When employees work in particularly extreme conditions, more specific examinations must be performed regularly.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 177
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Carolyn A. Knox Labor & Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart San Francisco, CA
Shareholder

Carolyn Knox is a member of the Cross-Border Practice group, which provides our clients with labor and employment law support in more than 100 countries. Carolyn works with clients in a variety of jurisdictions across South America, Europe and Asia-Pacific.

Carolyn has broad experience in both US employment and benefits law, as well has cross-border employment issues. Over the course of her 20+-year career as an employment lawyer, she has practiced in the United States, Europe, and Brazil. In her practice, she regularly provides advice and counsel on cross-border human resources law...

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Rebecca L. Marks, Ogletree Deakins, Multinational Corporate Lawyer, International Labor Attorney
Of Counsel

Rebecca Marks is a member of the International Practice Group, which provides worldwide labor and employment law support in over 100 countries.

Her expertise includes crafting practical, business-centric advice on international employment issues for U.S. management of multinational corporations. She supports U.S. human resources internationally and helps educate clients about the differences between US at-will employment law and the employee-centric laws of most of the rest of the world.  She drafts employment contracts, termination agreements...

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Skye Hao Labor & Employment Immigration Attorney Ogletree Deakins Law Firm Atlanta
Associate

Skye Hao is an attorney in the Cross-Border Practice Group and is based in the Atlanta office. As a full time member of the group, Skye is part of a growing team which provides worldwide labor and employment support in over 150 countries. Her cross-border experience includes advising clients on international corporate transactions, including cross-border mergers and acquisitions, corporate governance and commercial land lease agreements.

Skye is bilingual in English and Mandarin Chinese, and, though her practice is generally focused in the Asia-...

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