Amendment Arbowet: Company Doctor’s Position Reinforced
On 25 January 2017 the Dutch Senate adopted a bill amending the Working Conditions Act (in Dutch: “Arbowet”). In summary, the new act aims to reinforce the involvement of employers and employees in occupational health services.
Since research has revealed that the position of the company doctor is troubled by some bottlenecks, it was necessary to amend the Arbowet. These bottlenecks are, among other things, the independence of the company doctor vis-à-vis the employer and insufficient room for professional practice.
What Will Change?
The health and safety officer: right to consent of Works Council
Pursuant to the Arbowet, the health and safety officer is involved in the Hazard Identification and Risk Assessment and the execution of policy measures relating to employment conditions. The Works Council already had a right to consent (the ultimate remedy of this employee participation body) regarding the set of tasks of the health and safety officer. This is now extended by a right to consent regarding the positioning and the identity of the health and safety officer.
The company doctor
- The act will set out that the company doctor will only have an advisory role in the absence counselling of individual employees. Responsibility for the guidance of employees will remain the task of the employer.
- Employees will be given the chance to consult the company doctor before their complaints lead to absence.
- The act will include four specific rights and obligations that contribute, according to the bill, to good professional practice of company doctors: 1. The obligation of the employer to allow the company doctor to visit every workplace; 2. The obligation of the company doctor to the employee to offer him the chance of seeking a second opinion from another company doctor, unless compelling arguments dictate otherwise; 3. The obligation of the company doctor to have a complaints procedure in place; and 4. The right of the company doctor (and the other occupational health experts) to consult with the employee participation body.
Basic contract
There is a big variety of contracts between occupational health service providers and employers. The government fears that if such contracts contain too few provisions, this may lead to inadequate care. The contract between occupational health service providers and employers will therefore be subjected to minimum requirements: a basic contract. The contract contains the tasks (as under current law) in which employers have to be supported by an occupational health service (provider) under all circumstances. Examples of these tasks are the evaluation of the Hazard Identification and Risk Assessment; expert counselling of sick employees; but also the new access required by law to company doctors for employees seeking consultation. In addition, the contract includes the requirement that occupational health service providers must be able to perform their work in a professional manner. Employers will be free, in consultation with the occupational health service providers and their employees, to include more tasks in a basic-plus contract.
Supervision and enforcement
It will be set out in the act that the Labour Inspectorate SZW will have the right to attach sanctions to the provisions contained in the law amendment. Employers that do not have a contract with a company doctor or occupational health service run the risk of being fined immediately.
Existing contracts of employers with occupational health services that do no meet the law amendments will have to be adapted in accordance with the new obligations within one year of the enactment of the new law. The law amendment is expected to enter into effect on 1 July 2017.
What Does This Mean for Employers?
- They should discuss the pending changes and any action points with their occupational health service provider;
- They should make sure in any case that the contract with the occupational health service provider meets the requirements set on the basic contract on time;
- They should inform the Works Council of the coming changes.
