• Sheri Greenwell
    In the past, I recall that there was a formal process for workers to opt out of workplace health monitoring by signing a declaration form. I have been trying to find information about what is required, but all I can find is the WorkSafe information for conducting workplace health monitoring health checks, with informed consent for those checks to be carried out.

    Since it would seem unlikely that health monitoring could be made mandatory (similar to a number of other rights regarding personal health matters such as vaccinations), can anyone point me in the right direction to find out more?

    Thanks in anticipation.....
  • Chris Anderson
    Our supplier has an opt out form that they provide the employee and have them sign it. It states they understand they may be exposed to hazards and they are choosing to forgo monitoring. Though it's not really used, usually just an email or written confirmation that they are forgoing the monitoring should be enough.
  • Steve H
    If this monitoring is triggered by possible exposure to substances that may be harmful then:

    33 Duty to inform worker of health monitoring

    (1) A PCBU who is required by regulations to provide health monitoring to a worker must give the information specified in subclause (2) to—
    (a) a person who is likely to carry out work that involves a health hazard; and
    (b)a worker for the PCBU before the worker commences work that involves a health hazard.

    Under 2016 Health and Safety at Work (General Risk and Workplace Management) Regulations it looks like the worker has the right to decline to undertake that work, if they don't want to accept their health being monitored, but if they do the work, the PCBU has a duty to conduct health monitoring and hold the results for 40 years in the case of asbestos exposure and 30 years in all other cases (see regs 29-42). Reading them, I see no provision for a worker opt out, in the same way there isn't an opt out for wearing PPE etc(there is an option WRT PPE that the employee may substitute PPE of their own choosing so long as PCBU is satisfied that PPE is equivalent or better to the PCBU supplied PPE)..
  • Jane
    Why would it not be mandatory, if it is a reasonable instruction/policy/procedure given the specific circumstances of the job, the worker and the business? Why wouldn't the health monitoring fit into section 45 of the HSWA 2015?

    Does the employee that wants to opt out of monitoring also want/need to opt out of the part of their job that involves the hazard and controls you are monitoring? How else would you be able to know if your controls are effective? What are their reasons for wanting to opt out, is there a way to address their concerns?
    Something else to check, is the information you are collecting directly connected to your business? https://www.privacy.org.nz/privacy-act-2020/privacy-principles/1/
  • Chris Anderson

    Because the New Zealand Bill of Rights Act grants everyone the right to refuse to undergo any medical treatment.
  • Jane
    Is this medical treatment?
  • Chris Anderson
    I don't see how it wouldn't be considered medical treatment. In some instances you'd be forcing a worker to undergo a blood test against their will. I don't know any part of society where that would be tolerable. Even COVID-19 tests aren't compulsory for people staying in MIQ.

    In this situation it's more important to explain to the worker the purpose of the health monitoring, and why it's important. Perhaps show them the information that is shared with you, and explain to them what the employer is doing with this information. Allow them to make a fully informed decision,. If WorkSafe is saying the employer must have informed consent, it would suggest that workers are able to not consent.
  • Steve H
    . Even COVID-19 tests aren't compulsory for people staying in MIQ.Chris Anderson

    They are mandated for the workers on the border though Chris
    COVID-19 Public Health Response (COVID-19 Testing) Order 2020
  • Chris Anderson
    That's a very specific public health order for a very specific circumstance. If the government was mandating health monitoring HSWA or regulations would be just as explicit and not ask about informed consent.
  • Jane
    For example, if you are considering audiometry to be medical *treatment*, and the worker has the right to opt out, then that means that the employer is obliged to carry out a risk assessment to see if that worker is able to carry out work where the noise hazard is given that required monitoring can't be achieved.
    At what point does opting out of the monitoring then follow that the worker opts out of the work?
  • Steve H
    2016 Health and Safety at Work (General Risk and Workplace Management) RegulationsSteve H

    No mention of consent being required Chris, just an obligation to inform about the hazard, PPE required and the requirement that any workers exposed to the hazard must have their health monitored. Probably a good idea to specifically get agreement to monitoring in Employment Contracts as new staff come on board if this regulation applies to your situation
  • Tony Walton
    Maybe this sheds some more light on one's understanding of implications under 4 Acts, a Bill of Rights re refusal of medical treatment and the General Risk & Workplace Mgmt Regs.
    Agree with Steve these matters are best sorted at employment.
  • Sheri Greenwell
    It would make very good sense to include expectations for ongoing health monitoring for all new contracts. But NZ's ERA legislation also means that existing workers (especially long-serving employees who have many years if service) cannot have a new contractual requirement imposed on them without an appropriate consultation process.....what to do, eh?!??
  • Chrissy Hansen
    For high risk tasks where a worker maybe exposed to certain chemicals or dusty environments as an example, then it is the responsibility of the employer to monitor the on going health of that worker for example, annual lung function, and if working with machinery, annual hearing tests and if that worker ops out of an annual health check then they are not being monitored effectively and may not be suitable for the task. This must be reflected in the workers employment agreement. For less hazardous occupations the annual health check is offered but the worker can decline that offer and sign an opt out form usually provided by the occupational health professional
  • Steve H
    But NZ's ERA legislation also means that existing workers (especially long-serving employees who have many years if service) cannot have a new contractual requirement imposed on them without an appropriate consultation process.....what to do, eh?!??Sheri Greenwell

    Consultation is the key Sheri, this is a change imposed by government regulation, it's being imposed on employers who don't have any choice, and the way the regulation reads, neither do employees caught by it. If there's a clause in their contracts along the lines of " the employee shall at all times comply with Health & Safety legislation", then it's a slam dunk.

    In the same way, the Holidays Act may be changed to give extra Sick Leave, and extend when it may be taken (probably won't need too much consulting when it happens), but some explanation on how it's going to be implemented will be required.
  • Cathy Faulkner
    Kia ora Sheri

    This is covered in the WorkSafe Guidelines (https://www.worksafe.govt.nz/topic-and-industry/monitoring/guidance-for-businesses/ Page 27)...

    Nga mihi
  • Steve H
    Interesting read Cathy, particularly liked this sentence

    We recommend including biological exposure monitoring or health monitoring
    participation into employment agreements or contracts (with all the relevant
    information) so workers will know up-front about these requirements, and give
    their informed consent before they take the job.However, workers can still
    withdraw their informed consent at any time

    Also liked the part that advised you should consider transferring health monitoring results to the new owner if the business is sold, given the legislation requires the results to be retained for either 30 or 40 years, seems like yet another bit of conflicting advice from our Meerkat Mates.
  • Cathy Faulkner
    I'm not sure it is conflicting Steve, given the context of the section which also talks about the Bill of Rights. People's circumstances may change which means they may no longer want to undergo monitoring.(e.g. for religious or health reasons etc.).and that is their right.
  • Don Ramsay
    It is a personal choice but if they do refuse to consent to the monitoring you need to ensure it is recorded and always available. On our forms, I do ask for the reason so that it can be referred back to when required, they do not have to answer that part but I do encourage them to do so. So far no issues, but we have moved 1 worker away from an environment due to his non-consent he was not totally happy but after discussing the entire issue with him he was understanding that we did not want to keep him in an area where the risk to his health could not be monitored.
  • Andrew
    Hmmm. Seems to me we have lost sight of what monitoring is really all about. Which is essentially the very, VERY last link in our chain of risk management where we are trying to look for a failure in our systems which is at employee expense. Its even a link past PPE - which ought really be the very last link when all else has failed

    I'm appalled anyone would chastise, monitor, move or put any kind of pressure on an employee who didn't adhere to health monitoring expectations.

    It is our responsibility to put in place systems that do not harm people. End of story. We should be checking those system - not the people. If for example we are doing chemical health testing its too late. A positive result tells us our systems have failed and oh well the employee has cancer. That's not good enough.

    We need to be doing environment testing first and foremost to make sure our employees aren't being exposed to anything dangerous. If we find they are we should work hard to improve our risk management. That is, putting in proper controls.

    We've just completed our annual health monitoring. I don't get the employees to fill in anything. Though the Assessors do. If someone said to me "I don't want my health monitored" i'd have had zero problem with that and wouldn't waste a moment more of my time on it. I have reasonable confidence we are doing what we can to prevent harm in the first place and always looking at improvements. ( I did actually have one person say he wasn't going to get his hearing monitored - because he already has it done as part of his own personal health care. And I'm fine with that)

    As an aside, I had a call a while back from ACC asking if I had any hearing check test on an ex employee. Apparently he was claiming for work related noise induced hearing loss. I was able to bring up a hearing check from 25 years ago which showed he had hearing loss at the time and it was likely due to him being in a foreign army and using heavy artillery. Might have saved myself an ACC claim. But if it was our fault I would have worn the cost.
  • Steve H
    We need to be doing environment testing first and foremost to make sure our employees aren't being exposed to anything dangerous. If we find they are we should work hard to improve our risk management. That is, putting in proper controls.Andrew

    Absolutely Andrew, that's a given. But there will plenty of workers like Sherie's that may have been exposed to substances previously, or that may be exposed to a potentially damaging substance by virtue of the industry that they work in. Some examples could be Asbestos Removal, Concrete Grinding/Cutting, Stone Bench Top Manufacturers. Again, responsible employers will try and engineer solutions to separate them from those substances, but there may have to be some reliance on PPE

    I was able to bring up a hearing check from 25 years ago which showed he had hearing loss at the time and it was likely due to him being in a foreign army and using heavy artillery.Andrew

    And under the 2016 Regulations, you are required to retain the results of any health monitoring for 40 or 30 years, so while in your case, it didn't help someone prove they had developed a health issue from a gradual process exposure to some agent they came into contact with back in the day, being able to prove that contact will help folk in the future. Which would be why I think the advice that you should "consider" transferring health monitoring records to the new owner of a business that is sold, should be altered to "you shall" as it conflicts with the wording and presumably the intent of the regulations Cathy.
  • Andy Bunyan
    A bit late to the party with a reply here Steve but in referring to Reg 31 you can see that monitoring is only required if the substance hazardous to health to be used is prescribed in a Safe Work Instrument. Take a look at WorkSafe's collection of SWIs and you'll see very few.

    If this at first sight seems to give a free pass to hazsubs not yet captured by SWIs and indeed non-hazsubs things that can damage health - such as noise - then look no further than S.36(3)(g) of HSWA to see that very similar is written through the Primary Duty of Care lens.

    Timely this as I have just been discussing the merits (or otherwise) of opt-outs. A ray of light is shone on S.28 at this point.
  • Steve H
    Hi Andy,yes that's certainly true, but doesn't S34 1.(a) broaden it too ?

    34 Duty to ensure appropriate health monitoring is provided

    (1) A PCBU must ensure that health monitoring of a worker is of—
    (a) a type recommended by an occupational health practitioner with experience in health
    monitoring; or
    (b) a type referred to in a safe work instrument (if any).
  • John Easton
    Our health monitoring is written in to our conditions of employment for our workers.
  • rebecca telfer
    Our Annual Health Monitoring is also included in their contracts, and depending what department they work in the Health Monitoring tests are different.
    We have had a couple of battles with some, so in this instance we ask them to produce a letter from their GP stating they are being monitored externally.
Add a Comment

Welcome to the Safeguard forum!

If you are interested in workplace health & safety in New Zealand, then this is the discussion forum for you.