Employer Obligations regarding Employee Health Check up

Employer Obligations regarding Employee Health Check up

In this article, we shall discuss employer’s obligations to provide their staff with a medical or health check-up. We will focus on a key Ministerial Regulation which prescribes the criteria and method for conducting a health check-up as well as other important requirements imposed by this regulation such as who must conduct such checks, what they need to cover and when must applicable employees undertake such health check-ups.

Ministerial Regulation Prescribing the Criteria and Method for Conducting a Health Check–up & Forwarding of Results to Labour Inspector B.E. 2547 (2004)

This Regulation provides that employers who employ staff to undertake “risk factor related work” must provide these staff with a health checkup. The Ministerial Regulations define ‘‘risk factor related work” as work relating to the following:

(1)    Hazardous chemical substances as prescribed in announcements issued by the Minister of Labour, these include ammonia, vinyl chloride, naphthas, chloroform, glycol, iron and arsenic or arsenic compounds.

(2)    Toxic microbe which may be a virus, bacteria, fungus or other biological organisms as prescribed in announcements issued by the Minister of Labour;

(3)    Radioactivity;

(4)    Heat, cold, vibration, atmospheric pressure, light, noise or other environments which may be hazardous; for this purpose, as prescribed in announcements issued by the Minister of Labour.

Who must carry out the health check–up?

A health check-up must be conducted by a licensed medical practitioner who is specialized in occupational medicine or who has undergone training in occupational medicine or who has the qualifications as set out in the announcement of the Director-General. To ensure compliance with the law, the writer recommends that the employer request certified copies of the qualifications and medical licenses of the examining doctor before assigning them to carry out check-ups for their staff.

What must be examined under a health check–up?

According to this Regulation, a health check-up not only covers a physical examination but it must also cover a mental examination of the employee.

When must the employee check–up be undertaken?

In relation to employees who work in ‘risk factor related work’, their employer is obligated to provide them with a health check-up within 30 days from when they are first employed in this role. Subsequent check-ups of these staff must be carried out at least once a year. However, if an employer employs an employee for certain risk factor related work and then orders such employee to undertake different job which also constitutes risk factor related work then the employer must arrange for the employee to have a health check-up within 30 days from the date of the job change taking effect.

Health Check–up in cases where Employee is absent for 3 consecutive days for accident or illness

If an Employee is absent from work for 3 consecutive days due to an accident or illness (regardless of the circumstances) then the employer can request a medical explanation from the physician who provides treatment. The Employer may also provide a health check-up for the affected employee before allowing them to return to work. The writer recommends that employers should provide a health check-up for affected employees before allowing them to return to work because this will help to minimize their potential liability under the Workmen’s Compensation Act BE 2537 (1994) as this legislation imposes considerable obligations on an employer in case their staff are sick or injured as a result of their employment (see section 13). This approach to checking staff can avoid unwell or sick staff returning to work too early and thus suffering an avoidable injury or further illness caused by their early return to work.

Health Check–up Record

For those staff who undertake ‘risk factor related work’ which requires a health check-up, employers should note that the doctor who performs the check-up must record the details of their examination by indicating in their report any health condition of the employee which may affect or pose an obstacle to them carrying out their assigned work. Given this requirement, the writer advises that employers should work closely with the doctor they use to provide check-up support to ensure that the medical practitioner is fully aware of the employees’ respective work roles and responsibilities so that the doctor can comply with this legal requirement. To support compliance with this obligation the writer recommends that the employer should send over the employee’s job description to the examining doctor in advance of the check-up taking place so that the doctor can understand their job and can therefore accurately report back on any health issues which may have a detrimental impact on the staff members’ ability to carry out their assigned work. It is also worth noting that the medical practitioner who carries out a health check-up must sign their report.

Obligations on Employers re Records Keeping of Employee Health Check–Ups

If a health check-up is carried out for staff involved in ‘risk factor related work’ the employer is legally obligated to keep such records of the health check-up at the employer’s office until 2 years after the employee’s termination of employment, this is in case a labour inspector wishes to review such records. However, such records are required to be kept longer in the following situations:

1. If a complaint has been lodged that the employer has not complied with the law ;
2. There is a lawsuit in process relating to any disease or hazard to the employee’s health;

In the above 2 cases, the records of the health check-up must be retained until final judgement concerning the matter is settled. Employers should be careful with how they use such records as clause 7 of the first above mentioned Ministerial Regulations stipulates that “the employer is not permitted to use such information in a way that is unreasonably detrimental to the employee”. The regulation does not clarify what would be considered as ‘unreasonably detrimental to an employee’ hence the Supreme Court of Thailand will likely need to give guidance on this issue.

Providing Health Check–up Results to the Employee

Employers are under a legal obligation to inform the results of the health checkup to the respective employee as follows:

a)      If the result is abnormal then within 3 days of the date of acknowledgement of the result; and

b)      If the result is normal then within 7 days of the date of acknowledgement of the result.

If a result is abnormal or it appears that the employee is developing an injury or illness which relates to their work, then the employer must immediately arrange for the staff member to receive medical treatment and to find out the cause of the medical issue.

Employers should also note that upon the termination of the employee, they must give the Employee their Health Report Book which details the results of their health check-ups.

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