Occupational health services to be reformed

Source: based on Lower House, 2004/05, 29 814, no. 3.

Preference for internal expertise

In order to comply with the ECJ's ruling on the requirement for companies preferably to provide expert support for preventive tasks internally, the amendment adds a new Article 13 to the Working Conditions Act (Arbeidsomstandighedenwet, Arbowet) specifying that the employer must engage expert support from one or more of its own employees. In companies with fewer than 15 employees, this person may be the employer itself. If there is 'insufficient opportunity' to organise support within the company itself, external experts may be engaged. In Article 13, what is meant by 'insufficient opportunity' is expressed only in general terms. The original intention was to elaborate on this through policy guidelines and to link the requirement for expert support to the size and risk category assigned to the company. However, acting on the recommendation of the SER, the government opted for a solution that links this requirement to the actual circumstances within the company: the requisite level of expertise is determined on the basis of the risk inventory and risk evaluation. Employee representative bodies have a say in this area. In testing the risk inventory and evaluation, the employer must engage a certified expert. The requirements for expert support concerning general preventive tasks and concerning risk inventory and evaluation testing and recommendations are therefore framed differently.

The obligation preferably to arrange for testing of the risk inventory and evaluation (aside from general preventive tasks) to be carried out internally is now interpreted as follows. The opportunities for this within the company are considered to be sufficient if it is clear from the risk inventory and evaluation that the employee to be appointed to conduct the general preventive tasks must be a certified expert. The employer is then obliged to give this employee responsibility for testing the risk inventory and risk evaluation. If this is done within the context of a tailor-made arrangement, it is sufficient for the employer to engage this expert alone. Under the 'safety net' arrangement, the employer engages an internal occupational health service. In order to make it easier to engage an internal service, the rules related to certification of occupational health services have been modified in the sense that an internal occupational health service can also be considered a single internal expert along with three external experts.

The risk inventory and evaluation is not necessarily the last stage in this process. If grounds for such exist, the employer may deviate from the recommendation issued by the certified expert or occupational health service on the inventory and evaluation, providing approval is granted by the employee representative body. In such a case, however, the Labour Inspectorate (Arbeidsinspectie) can impose requirements if it considers this to be appropriate.

Workplace medical care

Although the EU framework Directive is limited to the preventive arena and no requirements are therefore imposed on the manner in which Member States arrange expert support with respect to other tasks, the revised Working Conditions Act lays down a new way of organising workplace medical care (bedrijfsgezondheidszorg). Liberalisation is also the key aim here. The only remaining obligation on employers is a contract with an industrial medical officer (bedrijfsarts) so that this party can always be consulted by the employer and/or employee. Other experts will need to be engaged insofar as a need arises. Sickness insurance providers will also play a role here, having previously required employers to be associated with a certified occupational health service. Should employers choose for a tailor-made arrangement under the new system, they would therefore need to gain approval from insurance providers as well as their employees. The government expects that, under the new system, large companies in particular will opt for new arrangements based on the appointment of an internal industrial medical officer in conjunction with a cooperative agreement with an external organisation. This could be either an occupational health service or a reintegration company. Sector-level arrangements are also an option.

Occupational health services market

In order genuinely to offer as much choice as possible for employers in the occupational health services market, the statutory provision that providers of such services must primarily focus on occupational health and absence will be scrapped under the law. This should facilitate access to the market and reintegration companies, for example, could also include occupational health services in their range of services. The organisation representing occupational health service providers (Brancheorganisatie Arbodiensten, BOA) is enthusiastic about this change because it will release occupational health services from the 'stigma' of being a 'necessary cost' and create space to come up with concepts that tie in better with the wishes and requirements of companies. BOA also has doubts about the market’s transparency and has therefore developed a code of conduct for the sector.

While BOA and large occupational health services such as Arbo Unie have responded positively to the legislative amendment, it has led to job losses at the latter. These are thought to be necessary in order to strengthen its competitive position and to create room for investments in new products and services.

Commentary

The recent legislative amendment was prompted by both the desire for liberalisation and the ECJ's requirement that expert support with respect to preventive tasks preferably be arranged internally. These two premises are somewhat contradictory. After all, the first aims to create as much freedom for companies as possible and the second involves the imposition of obligations. As far as possible, the legislative changes hinge on the first premise - freedom of choice is the priority. The law does not regulate the requisite level of expertise or specify when a company will be considered to comply, at least not in a material sense. A procedural requirement has been deemed sufficient. The risk inventory and evaluation is the main element in the required procedure. The employer and employees are themselves at liberty to determine what form of expertise is required and whether the company is capable of providing such expertise itself. They cannot produce a completely inadequate risk inventory and evaluation because a certified expert - who is not without a vested interest - will still carry out testing. The employer and employees may subsequently deviate from the recommendation issued by the certified expert provided this is done in mutual consultation. The trade union movement has always been highly critical of occupational health services, but has now also suggested that there may be too much freedom for the social partners under the new system, because employees could also ultimately agree with inadequate arrangements. Taking into account the complex, non-transparent market for external experts, the new scheme is still fraught with uncertainties. Employee involvement is not always a sure guarantee of quality. (Marian Schaapman, HSI)