Any employer who regularly employs more than 5,000 workers must set up an occupational health service within his company: this is the company occupational health service.
The same applies to any employer who regularly employs more than 3,000 workers and at least 100 of whom are employed in hazardous jobs.
All other employers have the following options:
they can set up an occupational health service within their company (company service);
they join with other employers in an association of companies organising an inter-company occupational health service for all the members of the association (inter-company occupational health service);
they can use the multi-sector occupational health service.
The creation of any service which is not compulsory within the meaning of the law is subject to prior authorisation by the Minister of Health, who grants it only if the service meets the requirements laid down by the law and the grand-ducal regulations. The Minister of Health shall withdraw the authorisation if these requirements are no longer met or if the service fails to fulfil its obligations under the law.
In principle, an occupational physician cannot take responsibility for more than 5,000 workers.
Penalties incurred by the employer
The following are punishable by imprisonment for a period of eight days to six months and a fine of €251 to €25,000 or by only one of these penalties:
any employer who employs a worker who has not undergone the legally prescribed medical examination (recruitment examination and periodic examination);
any employer who employs an unfit worker despite being prohibited by law;
any employer who refuses or causes to be refused to the occupational physician either free access to the workplaces and facilities provided by the undertaking to the workers or access to information relating to the processes, work standards, products, materials, and substances used or intended to be used or the taking of samples of products, materials or substances used for analysis;
any employer who is a member of a business association whose service does not meet requirements;
any employer who does not organise a health service although it is within the conditions provided for by law.
8 occupational health services cover all private sector companies
The Multi-Sector Occupational Health Service (STM) is by far the largest of the occupational health services, both in terms of its number of members and its number of doctors. This service has the character of a public institution. It has legal personality and enjoys financial and administrative autonomy under the supervision of the Minister of Health. It is managed in the forms and according to the methods of the private sector. The multi-sector service is placed under the authority of a steering committee comprising a president, three representatives from the employees’ unions and three representatives from the employers’ professional organizations.
In addition to the STM, there are three inter-company services:
the Industrial Occupational Health Service (IOS), organized by FEDIL;
the Occupational Health Service for the Financial Sector (ASTF), organised by the ABBL;
the Hospital Occupational Health Service (SIST-EHL), organized by the Entente des hôpitaux.
There are also four departments undertaken with one or more doctors for the whole company:
the Occupational Health Department of Dupont de Nemours;
the Occupational Health Service of the Luxembourg Railways;
the Occupational Health Service of the steel sector (SST, Arcelor Mittal), organised by the Arcelor Mittal group;
the Occupational Health Department of Cactus.
Employers who do not organize an occupational health service within their company and who do not participate in an inter-company service must adhere to the multi-sector occupational health service.
What are the tasks of occupational health services?
The missions of occupational health services are essentially preventive in nature.
The services are responsible for:
identifying risks to health in the workplace, helping avoid these risks and in particular t combating them at source and assessing the risks that cannot be avoided;
monitoring workplace factors that may affect workers’ health, e.g. noise, smoke, gases, fumes, harmful radiation;
making recommendations on how workplaces are planned, in particular regarding the layout of workplaces and the choice of work equipment, as well as on the use of chemical substances or preparations which may constitute a risk to workers’ health, e.g. adaptation of the workstation to the worker, evaluation of work equipment (machines etc.) by the occupational physician, collective and individual protective equipment etc.;
promoting the adaptation of work to the individual, particularly with regard to the design of workstations and the choice of working and production methods, with a view to reducing monotonous work and work at a high rate of speed and to reducing adverse effects on health;
monitoring the health of workers in relation to work and carrying out the medical examinations provided for by law for this purpose;
advising employers and employees in the fields of hygiene, ergonomics, health education and occupational rehabilitation, e.g. ventilation, lighting, heating, maintenance of workplaces, changing rooms, washbasins, etc.; adaptation of working techniques and working conditions to human physiology; drawing up of hygiene plans; hygiene of canteens and other special company facilities for workers;
cooperating with the Joint Committee or, failing that, with the staff delegation;
organising first aid, e.g. initiate first aid courses etc.
A company or inter-company occupational health service may at the same time take on the tasks of the protection and prevention service as defined by the legislation on the Health and Safety of workers at work, i.e. :
ensure the protection and prevention of risks to the health and safety of workers;
organise first aid, fire-fighting and evacuation of workers in the event of serious and immediate danger;
produce an assessment of the risks to health and safety, including those relating to groups of workers at particular risk;
provide adequate Health and Safety training in the form of information and instruction etc.
The occupational physician is a physician, who exercises his function in complete professional independence from his employer, the employee’s employer and the employees.
The function of occupational physician is incompatible with the private practice of the profession.
The doctor must personally carry out all his duties; these are exclusive of any other duties in the establishments for which he is responsible.
The Labour Code imposes a certain number of medical examinations as part of the medical monitoring of employees, which must be carried out by an occupational physician. These examinations include compulsory examinations, such as those carried out at the time of hiring and at regular intervals, and optional examinations, such as those carried out when changing jobs or returning to work after a long period of absence.
The occupational physician can also intervene on behalf of protected employees: pregnant women, young workers, etc.
The occupational medicine medical examination has several components, depending on the risks to which an employee is or will be exposed.
Under no circumstances can the occupational physician verify the validity of sick leave.
The occupational physician, during all the time that a professional activity is carried out there:
has free access to all workplaces and facilities provided by the company to workers;
has access to information relating to processes, work standards, products, materials and substances used or proposed to be used, subject to the confidentiality of any confidential information it may collect;
may take samples of products, materials or substances that are used for analysis.
The occupational physician shall be consulted on any proposed change in working procedures or conditions which may affect the health or safety of workers.
The employer, in collaboration with the occupational physician, makes an inventory of the positions at risk and updates it every three years. These documents are sent to the Occupational Health Division.
If the occupational physician considers that the health of workers is seriously threatened, he or she shall inform the Divisional Medical Officer of the Occupational Health Division, who shall report the situation to the Director of the Labour Inspectorate and Mines.
At the beginning of each year, occupational health physicians draw up an activity report for the company(ies) for which they are responsible and for each company usually employing at least 150 workers. This document is limited to the activities carried out by the occupational health service during the past year in the company concerned.
After submission to the staff delegation, this report shall be sent, in duplicate, to the Health Directorate, Occupational Health Division, not later than 1 March of the year following the year to which it relates.
For companies with less than 150 employees, the activity report is drawn up every three years.
Can occupational physicians initiate an outplacement procedure?
Since January 1st, 2016 a new route has been introduced to the reclassification procedure within the framework of the occupational physician’s medical examinations.
When occupational physicians declare an employee unfit for the last job this person has occupied following a medical examination in occupational medicine (periodic examination, examination prior to resumption of duties or examination at the request of the employer or the employee), they may refer the matter to the Joint Commission with a view to professional reclassification under 2 conditions:
the employee must have been with the company for more than 10 years;
the employee must work in a hazardous job.
Referral to the Joint Committee by occupational physicians differs according to the size of the company:
for companies with at least 25 employees, the occupational physician refers the matter directly to the Joint Committee and informs the employer and the employee;
if the company has fewer than 25 employees, the occupational physician may refer the matter to the Joint Committee only if the employee and the employer have previously agreed. In the event of disagreement, the employee depends on the goodwill of his employer.
To Note: both employees and employers may apply to the Chief Medical Officer of the Occupational Health Division for a review of the occupational physician’s findings. This option does not exist for reports referring the matter to the Joint Committee.